During John Brennan’s recent nomination process, Senators grilled the prospective CIA director on the covert drone program he has personally overseen.
In response to the executive stonewall that silences details on the targeted killings, one proposal put forward by Senators–which remains tentative–is to create a secret federal “court” that would arbitrate decisions over life and death.
The precedent already exists. Since 1978 the Foreign Intelligence Surveillance Act court, created by Congress, oversees and approves national security “eavesdropping” on American soil. The aim was to arbitrate presidential and executive authorities after revelations surrounding abuse by the NSA and FBI. 11 judges from across the U.S. sit on the court, but only one is on duty at any time. According the most recent statistics, the court approved 1,745 orders for electronic surveillance or physical searches, rejecting none, and altering just 30.
A drone court would face constitutional obstacles. But with a permanent war entrenching itself in U.S. foreign policy, the idea has some traction among legislators that see at as “legitimizing” solution. Although, given the fact that the FISA court has yet to reject an agency’s warrant, one could be imagine that a Drone Court would simply rubber-stamp a proposal.
Senator Dianne Feinstein, Democrat of California, who is chairwoman of the Senate Intelligence Committee, said she would review proposals for establishing such a court. Her remark was endorsed by Senator Angus King of Maine, an independent.
“Having the executive being the prosecutor, the judge, the jury and the executioner all in one is very contrary to the traditions and the laws of this country,” he said.
Mr. Brennan then made a surprising admission:
The Obama administration had held internal talks on the feasibility of such a court. “I think it’s certainly worthy of discussion,” Mr. Brennan said. “What’s that appropriate balance between the executive, legislative and judicial branch responsibilities in this area?”
With the court still remaining fundamentally “secret”, it is unlikely it will win over critics., Hina Shamsi, director of the American Civil Liberties Union’s national security project, said that “I strongly agree that judicial review is crucial,” adding “But judicial review in a new secret court is both unnecessary and un-American.”
Nor are U.S. judges necessarily keen to participate. At an American Bar Association meeting in November 2012, a retired FISA judge, James Robertson, rejected the notion: “My answer is, that’s not the business of judges,” Mr. Robertson said, “to decide without an adversary party to sign a death warrant for somebody.”
More on the NYT
[see also: Sen. Feinstein Says Intelligence Committee Reviews Drone Attacks, NPR]