[Vision2020] Drone Discussion Issue

[Art Deco]

 [image: The New York Times] <http://www.nytimes.com/>

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February 20, 2013
Who Will Mind the Drones? By NEAL K. KATYAL

WASHINGTON

IN the wake of revelations about the Obama administration’s drone program,
politicians from both parties have taken up the idea of creating a “drone
court” within the federal judiciary, which would review executive decisions
to target and kill individuals.

But the drone court idea is a mistake. It is hard to think of something
less suitable for a federal judge to rule on than the fast-moving and
protean nature of targeting decisions.

Fortunately, a better solution exists: a “national security court” housed
within the executive branch itself. Experts, not generalists, would rule;
pressing concerns about classified information would be minimized; and
speedy decisions would be easier to reach.

There is, of course, a role for federal courts in national security. In
2006, I argued and won Hamdan v.
Rumsfeld<http://www.law.cornell.edu/supct/html/05-184.ZS.html>,
a Supreme Court case that struck down President George W. Bush’s use of
military tribunals at Guantánamo Bay. But military trials are a far cry
from wartime targeting decisions.

And the Foreign Intelligence Surveillance
Court<http://www.fjc.gov/history/home.nsf/page/courts_special_fisc.html>,
which reviews administration requests to collect intelligence involving
foreign agents inside the country and which some have advocated as a model
for the drone court, is likewise appropriately housed within the judicial
system — it rules on surveillance operations that raise questions much like
those in Fourth Amendment “search and seizure” cases, a subject federal
judges know well.

But there is no true precedent for interposing courts into military
decisions about who, what and when to strike militarily. Putting aside the
serious constitutional implications of such a proposal, courts are simply
not institutionally equipped to play such a role.

There are many reasons a drone court composed of generalist federal judges
will not work. They lack national security expertise, they are not
accustomed to ruling on lightning-fast timetables, they are used to being
in absolute control, their primary work is on domestic matters and they
usually rule on matters after the fact, not beforehand.

Even the questions placed before the FISA Court aren’t comparable to what a
drone court would face; they involve more traditional constitutional issues
— not rapidly developing questions about whether to target an individual
for assassination by a drone strike.

Imagine instead that the president had an internal court, staffed by expert
lawyers to represent both sides. Those lawyers, like the Judge Advocate
General’s Corps in the military, would switch sides every few years, to
develop both expertise as repeat players and the ability to understand the
other point of view.

The adjudicator would be a panel of the president’s most senior national
security advisers, who would issue decisions in writing if at all possible.
Those decisions would later be given to the Congressional intelligence
committees for review. Crucially, the president would be able to overrule
this court, and take whatever action he thought appropriate, but would have
to explain himself afterward to Congress.

Such a court would embed accountability and expertise into the drone
program. With a federal drone court, it would simply be too easy for a
president or other executive-branch official to point his finger at a
federal judge for the failure to act. With an internal court, it would be
impossible to avoid blame.

It’s true that a court housed within the executive branch might sound
nefarious in today’s “Homeland” culture — if Alexander Hamilton celebrated
the executive, in Federalist No.
70<http://teachingamericanhistory.org/library/index.asp?document=16>,
for its “decision, activity, secrecy and dispatch,” some now look at those
same qualities with skepticism, if not fear.

In contrast, advocates of a drone court say it would bring independent,
constitutional values of reasoned decision making to a process that is
inherently murky.

But simply placing a drone court in the judicial branch is not a guaranteed
check. The FISA Court’s record is instructive: between 1979 and 2011 it
rejected only 11 out of more than 32,000 requests — making the odds of
getting a request rejected, around 1 in 3,000, approximately the same as
those of being struck by lightning in one’s
lifetime<http://news.nationalgeographic.com/news/2004/06/0623_040623_lightningfacts.html>.
What reason does the FISA Court give us to think that judges are better
than specialists at keeping executive power in check?

The written decisions of an internal national security court, in contrast,
would be products of an adversarial system (unlike the FISA Court), and
later reviewed by Congressional intelligence committees. If members of
Congress saw troublesome trends developing, it could push legislation to
constrain the executive. That is something a federal judge cannot do.

One of our Constitution’s greatest virtues is that it looks to judges as a
source of reasoned, practical, rights-minded decision making. But judges
should be left to what they know. A national security court inside the
executive branch may not be a perfect solution, but it is a better way to
balance the demands of secrecy and speed with those of liberty and justice.

Neal K. Katyal <http://www.law.georgetown.edu/faculty/katyal-neal-k.cfm>, a
former acting solicitor general, is a professor of national security law at
Georgetown and a partner <http://www.hoganlovells.com/neal-katyal/> at the
law firm Hogan Lovells.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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