A Killing Court

Editor’s note: This article was originally published by The National Interest.

In John Brennan’s confirmation hearing before the Senate Select Committee on Intelligence, committee chair Diane Feinstein (D-CA) said she would explore with Congressional colleagues the possible creation of a special court to review candidates for assassination by armed drones. The idea is worth exploring. Such a judicial mechanism could be a way of meeting the well-justified concerns of many that the drone program is too much a matter of executive discretion. The Foreign Intelligence Surveillance Court can serve as a successful model of how such a court might work. If we are to involve the judiciary before tapping a person’s telephone (even when the target of the tap is a foreigner), why shouldn’t we involve courts before killing the person?

Even if a drone court does not materialize, Congressional consideration of one would give a healthy boost to the hitherto insufficient discussion and debate about applying the rule of law to aerial assassination. Before establishing any such court, however, Congress should carefully weigh one other thing such a court would do and some things it would not do.

Creating the court would further institutionalize—in an even more prominent way than “playbooks” used within the executive branch—assassination of individuals overseas as a continuing function of the United States government. Is that something Americans really want to do, and is it consistent with what Americans think they stand for?

A court would not weigh the pros and cons of either individual killings or the entire program on any criteria other than those that could be made justiciable. Presumably the court would make judgments regarding whether evidence presented to it shows that a given individual is willing and able to participate in anti-U.S. terrorist attacks. One could not expect a court to weigh whether on balance the killing program is reducing the terrorist threat to the United States more than it is increasing it by stimulating more angry individuals to resort to terrorism. That troubling question has been hanging around now for years, going back to before armed drones were the heavily relied upon tool they have become and to when Donald Rumsfeld ruminated aloud about whether we were creating more terrorists than we were eliminating. We still lack a satisfactory answer to that question that would constitute a justification for the drone program. (It is presumably this lack that leads David Brooks to suggest creating, in addition to a court, “an independent panel of former military and intelligence officers issuing reports on the program’s efficacy.”)

A court also would not consider other damage (or conceivably benefits) to U.S. policy and interests that goes beyond terrorism and the creation of more terrorists. We were reminded of the broader consequences when the Pakistani ambassador complained publicly this week that drone strikes were a clear violation of international law and her nation’s sovereignty and threatened U.S.-Pakistani relations. Of course, we need to apply many grains of salt to such a complaint from the envoy of the country where Osama bin Laden was living under official noses and where other reporting suggests that at least some of the drone strikes have been privately welcomed by Pakistani leaders even though they publicly complain about all of them. Nonetheless, widespread negative reactions to the strikes and their collateral damage affect popular attitudes, in Pakistan and elsewhere, toward the United States and ipso facto affect the posture of governments toward the United States.

A couple of years ago I gave testimony to the Senate Foreign Relations Committee in which I mentioned the two-faced Pakistani approach on this subject, with private attitudes not always matching the public rhetoric. The one point on which the committee chairman, John Kerry, differed with my testimony was that he believed, based on his own conversations with Pakistani officials, that genuine attitudes toward the drone strikes were more strongly negative than I may have suggested. I take his comment then as a good sign that the new secretary of state will give proper attention to the broader consequences of the aerial assassinations.