Senate Republicans on Tuesday ruled out placing armed drone strikes under the authority of a special court, arguing the move would be a dangerous intrusion on presidential power.
Sen. Dianne Feinstein (D-Calif.) last week raised the idea of creating a new oversight court for drones that would be patterned after the checks and balances that govern surveillance.
But senior Republicans in the Senate dismissed that plan as unrealistic, and warned it would undermine critical counterterrorism efforts.
“I think it is a terrible idea,” Sen. Lindsey Graham (R-S.C.) told The Hill.
A new court would be “the biggest intrusion ... in the history of [this] country” on the president’s authority as commander in chief, Graham said.
Sen. John McCain (R-Ariz.) said the concerns about drone oversight could be resolved by handing the program over to the military.
“You just need to move it to the Department of Defense,” McCain told reporters. “We are talking about using equipment to kill people.”
While “there may be some role to play” for the CIA and the U.S. intelligence community, placing armed drones under the exclusive control of the Pentagon “solves the problem” of balancing oversight with national security, McCain said.
Feinstein floated the idea of an oversight court patterned after the Foreign Intelligence and Surveillance Act (FISA) after last week’s confirmation hearing for John Brennan, President Obama’s pick to head the CIA.
Brennan stressed in his public testimony that the administration only authorizes lethal force against U.S. citizens as a “last resort to save lives when there is no other alternative.”
But some lawmakers argue that the drone powers cannot continue to be treated as a presidential prerogative.
FISA established a special federal court to approve surveillance on suspected foreign spies working inside the United States. Feinstein, the chairwoman of the Senate Intelligence Committee, suggested a similar federal court could be created to review possible targets compiled by the CIA for lethal drone attacks.
But the creation of a FISA-like court for drone strikes has been met with fierce resistance from Republicans who say protecting the nation must always come first.
“We don’t allow [the judicial branch] to control the commander in chief’s decision to send people into battle,” Graham said. “Courts are not trained for this. They are not in the targeting business. Who the enemy is composed of and who represents a threat is a military decision, not a criminal decision.”
Asked whether he would support McCain’s notion of fully transitioning the program to the Pentagon, Graham replied: “That might make a lot of sense [and] I might be open to that.”
Sen. Chuck Grassley (R-Iowa), who was one of several Republicans pushing for the release of the classified legal rulings on drones, also rejected a court as the wrong approach.
“There would have to be an analysis other than FISA,” Grassley said. “I am not saying there should not be some curbs on the [administration’s] power over drones, but I do not think it can be a court [system].”
One powerful Democrat said he shares concerns about bureaucratic red tape hampering the president. Senate Armed Services Committee Chairman Carl Levin (D-Mich.) said some kind of “independent review” of the White House counterterrorism program was necessary — but not necessarily involving a judge.
“We have got to at least consider some ways ... to have some kind of independent review of the targets,” he said, “[but] I am not sure courts are the right way to do it.”
One problem with a courts-based approach, according to Levin and Grassley, is the lengthy review process that comes with it.
Many times, the window of time to take out suspected terror targets via drone strikes is very small. Grassley said a drawn-out review process in the courts could result in U.S. military and intelligence officials missing an opportunity to take out a terror suspect.
“In most instances of FISA, you are trying to track people that [pose] an imminent danger, sometime down the road,” Grassley said. “When you are commander in chief, you need to be able to act right now.”
Former Defense Secretary Robert Gates has also questioned the viability of legal reviews of the strikes due to the time constraints inherent to the operations, according to Levin.
Sen. Kelly Ayotte (R-N.H.) suggested the oversight role for the armed drone program can and should fall to Capitol Hill.
“There needs to be more robust congressional oversight of the drone program,” she said, adding the FISA-like court approach “is not workable, in light of how quick you have to move once you find a target.”
For her part, Feinstein said members of the Senate Intelligence and Judiciary panels “really haven’t put anything together [yet]” on a proposal for a FISA-like court for armed drone operations.
“We will look into it, [but] we are trying to get the Brennan nomination done first,” she said.
Feinstein’s panel will weigh in on Brennan’s nomination on Thursday. He is expected to clear the committee and be confirmed by the Senate despite the controversy surrounding his role in creating the armed drone program during his time at CIA and in the Obama administration.