Gavel Grab

Debate: Should a Drone Strike Oversight Court Be Created?

The idea of creating a new court to furnish independent review of government-ordered targeted killing of suspected terrorists is getting serious discussion, and legislation for an oversight court may be proposed.

When senators held a recent hearing on President Obama’s nomination of John Brennan to be CIA director, the idea was raised, according to a New York Times article. “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,” said Sen. Angus King, an independent from Maine.

Brennan said there had been talks within the Obama administration about whether such a court would be feasible.

The Times reported, “A drone court would face constitutional, political and practical obstacles, and might well prove unworkable, according to several legal scholars and terrorism experts.”

Jameel Jaffer, deputy legal director for the ACLU, said, “There is no reason to create a new court.” The administration could be held accountable more effectively through use of existing courts to weigh challenges to the legality of targeted strikes that have occurred, he contended.

Some of the discussion has centered on creating a drone strike court similar to the Foreign Intelligence Surveillance Court created by Congress in 1978. But a retired judge who sat on that court told an American Bar Association gathering that judges ought not approve “death warrants.” “My answer is, that’s not the business of judges,” former Judge James Robertson said, “to decide without an adversary party to sign a death warrant for somebody.”

Last week, NBC News made public a Justice Department memo revealing the Obama administration’s legal reasoning behind targeted killings of U.S. citizens accused of being terror suspects (see Gavel Grab). Constitutional law professor Noah Feldman of Harvard wrote a Bloomberg commentary about the memo, headlined “Obama’s Drone Attack on Your Due Process.”

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