For months, there have been human rights or civil liberties groups sharply condemning President Barack Obama’s targeted killing program especially because he holds all the power to decide who lives and who dies, however, up until a Justice Department “white paper” on the program was leaked by NBC News, there was little discussion by US news media about the nature of the program.
The leak has now led members of Congress to at least make it appear that they are publicly interested in engaging in oversight of the program. And, yesterday, a proposal to establish a court similar to the Foreign Intelligence Surveillance Court was the focus of articles from the Washington Post, Associated Press and Reuters. It was also mentioned in a few newspaper editorials praising drones.
On Thursday, during the confirmation for John Brennan, who Obama nominated to become the next CIA chief, Sen. Angus King advocated for a court to be established that would be similar to the Foreign Intelligence Surveillance Court that authorizes requests from the National Security Agency for wiretaps:
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, and particularly in a situation where there is time. If—a soldier on a battlefield doesn’t have time to go to court. But if you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.
Brennan appeared to rebut this suggestion by saying, “A court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield as well as actions that are taken against terrorists, because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action, so we protect American lives.”
He would not give his opinion of waterboarding being torture because he is not a lawyer, but, when asked to draw conclusions about the legality of the drone program or proposals for reform, the architect of much of Obama’s targeted killing policy was perfectly fine with giving his opinion.
The Washington Post highlighted Sen. King’s suggestion, along with the fact that Sen. Dianne Feinstein, chair of the Senate Select Committee on Intelligence, indicated she would review “a proposal to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes.”
It concluded the proposal faces two obstacles: (1) “almost-certain opposition from the executive branch to a dilution of the president’s authority to protect the country against looming threats” and (2) “the difficulty of putting judges in a position to approve the killing of individuals — possibly including American citizens — even if they have not been convicted of a crime.”
The first obstacle is an excuse to maintain and grow the imperial presidency. The second obstacle makes it clear that having a court involved may not make it “legal” because there is something ethically wrong with having an assassination or targeted killing program (as the Obama administration calls it).
The Post’s article suggested it would be hard to find a judge willing to preside over the court:
At a law conference last year, former judge James Robertson, who retired from the U.S. District Court for the District of Columbia in 2010, referred to the 2011 drone strike in Yemen that killed Anwar al-Awlaki, an American-born Muslim cleric accused of plotting attacks with al-Qaeda.
“That’s not the business of judges .?.?. to sign a death warrant for somebody who is on foreign soil,” Robertson said. “If you brought that case to me, I would put that case back on the wheel and send that to another judge.”
If judges are concerned about being the one tasked with deciding who lives and who dies, that does not indicate it is a power that should remain in the control of the executive. It means it is a power that, perhaps, no president or agency in the Executive Branch should be able to wield.
The Associated Press‘ quoted Democrats, who supported the idea of a FISA-type court: [cont’d.]
Photo by J. Stephen Conn under Creative Commons license