After many years of trying in vain to find the line between lawful and unlawful court-ordered killing, Supreme Court Justice Harry Blackmun threw up his hands. "From this day forward, I no longer shall tinker with the machinery of death," he said, dissenting in a 1994 capital punishment case.
What does this have to do with drone attacks? Justice Blackmun was speaking about a man who had been charged, convicted, and sentenced for a crime established by a democratically elected legislature. Killing in war, on the other hand, generally involves no judicial process. And that’s perfectly legal if done in accordance with the laws of war.
The instinct to regulate the government's claimed unilateral killing power is understandable. But a U.S. court empowered to issue death warrants against people who have not been charged, let alone convicted, would be a revolutionary re-write of separation of powers and of the very meaning of judicial review. It would be unjust, ineffective, and counterproductive. It may be unconstitutional as well.
A “drone court” would be unjust because the proposed target would be unable to appear and make the case for preserving his life. A secret judicial process in which the right to life is at stake but the owner of that life has no say is an affront both to American values and international legal principles.
While doing much harm, a “drone court” would do little, if any, good. Supporters like the idea because it appears to provide some check on the President’s secretive exercise of this lethal unilateral power. But what judge would risk preventing the interception of a terrorist? What’s more likely is that the drone court would be a rubber stamp, creating only the appearance, not the reality, of justice.
In wartime, the president may authorize killing of members of enemy armed forces or anyone else directly participating in hostilities. In an unconventional war such as this one, where the definition of the “enemy” and its “armed forces” isn’t always clear, the president needs to disclose how he defines that enemy and determines who is a member of its armed forces or otherwise participating in its fight against the United States, so that we can have some assurance he’s not killing the wrong people. A secret court would have no special expertise in making that determination.
Outside an active armed conflict, the legal standards are different: a suspect can be targeted for death only if he poses an “imminent threat” to human life that cannot be thwarted by non-lethal means. Here a “drone court” would be especially useless. We wouldn’t want the military to have to jump through judicial hoops to thwart a truly imminent attack. If the threat is imminent, there is, by definition, no time to seek judicial review, and if there is time, the threat is, by definition, not imminent.
But a “drone court” would be worse than ineffective: it would harm national security. Throughout the “war on terror,” policies that offend international law, including the broad scope of the government's claimed authority to kill, have inhibited allies from sharing essential intelligence with the United States and damaged the country’s reputation as a beacon on human rights. A secret court would only reinforce the perception that the United States concocts its own secret rules while insisting that other countries follow the international public ones.
Pre-targeting judicial intervention is also probably unconstitutional because the U.S. constitution empowers courts to hear "cases and controversies," but not to render "advisory opinions." Adjudication of an act to take place in the future would seem to violate this restriction.
So if a drone court isn’t the answer, what is?
Congress should require the executive to disclose the targeting standards it’s adopted so as to expose its rationale to scrutiny. The leaking of a single document — a “white paper” laying out the administration’s legal case for killing U.S. citizens — has triggered unprecedented criticism and pushback from Congress and the media. Scrutiny begets scrutiny and can lead to meaningful reform. That’s surely one of the reasons the White House has refused to release most information about the targeted killing program.
Congress should also ensure that victims of unlawful targeting — or their survivors — have the right to claim compensation, creating a deterrent to government abuse. That right already exists in theory but time and again courts have prohibited such cases from moving forward, buying without question the government’s claim that allowing them would threaten national security. Congress should limit the executive’s ability to hide unlawful killings behind this claim.
These are just a few of the steps Congress could take to rein in the unbridled power of this administration any future ones to clandestinely kill individuals suspected of participating in terrorism. Creating a new secret court to secretly review secretly planned killings is not the way to go.
Rona is international legal director at Human Rights First.