Fordham Law

'Drone Court' Idea Called Into Question by Center on National Security Speaker

March 18, 2013

Media Source

The Center on National Security in The Wall Street Journal, March 18, 2013


The Pentagon's former top lawyer questioned proposals for a so-called drone court to review the Obama administration's targeted-killing campaign, arguing that such oversight likely would be viewed as a rubber stamp.

Instead, Jeh Johnson, who was general counsel of the Defense Department until the end of last year, said the government should consider shifting more of the program to the military from the
Jeh Johnson
Photo by Dan Creighton
intelligence services.

Moving control away from the Central Intelligence Agency, Mr. Johnson said, would allow for more transparency and boost public confidence, avoiding the need for a new court.

Criticism of drone strikes and targeted killings—especially involving American citizens—has fueled interest in Congress and elsewhere in the creation of a special court to oversee the lethal operations.

In a speech Monday at Fordham University School of Law in New York, Mr. Johnson said the government should be more transparent about its counterterrorism operations. As it stands, Mr. Johnson said, the government doesn't disclose classified CIA counterterrorism successes and cannot "confirm, deny or clarify" accusations of errant strikes or civilian casualties.

He also argued the military would give a stronger legal basis for counterterrorism operations. The military currently conducts some of the U.S. drone strikes in Yemen and all of the strikes in Somalia and Afghanistan.

Mr. Johnson's speech came as questions mount about drone use, both from liberal human-rights groups as well as conservatives such as Sen. Rand Paul, the Kentucky Republican who recently waged a nearly 13-hour filibuster on the subject.

The growing suspicion has spurred proposals for a national-security court to approve the addition of terror suspects to an administration kill list.

Sen. Angus King (I., Maine) said it was critical for there to be some check on the government's power when it comes to targeting American citizens. "This isn't an insertion of a court…into a war-fighting situation," Sen. King said. "We are talking about targeting Americans in situations where there is time for an intermediate step."

The drone program has also been debated within the military. Leon Panetta, former defense secretary and onetime CIA director, favors greater military control. But some senior officers have said moving the program away from the agency likely would lead to more restrictions, making it harder to target militants. The officers also say increasing strikes' transparency would give the public more information but could allow militants to learn more, possibly enough to avoid being targeted.

Under the Foreign Intelligence Surveillance Act, Congress has set up court oversight of national-security surveillance inside the U.S.

Voicing doubts about establishment of a similar court to oversee drone strikes, Mr. Johnson said its proceedings would be secret and judges likely would reject few of the government's requests. That would lead the media and the public to take a skeptical view of it, he said.

Mr. Johnson added that such a court may be unconstitutional, by infringing on the president's role as commander in chief.

Benjamin Wittes, a Brookings Institution scholar, said the obvious alternative to "judicializing" targeted killing is to remilitarize it. Mr. Wittes argued the strikes would be much less controversial if conducted by the military.

"That is probably a more sensible answer than the instinct to create a new judicial institution," Mr. Wittes said.

Related coverage:

The New York Times
The Huffington Post
The New York Law Journal

Read Johnson's full speech.