US Senators considering secret court to rule on additions to kill list

The idea is that a secret court would consider evidence that a suspect should be on a targeted killing list and hence could be attacked by a drone. The court would issue what might be called a "death warrant".

The secret drone court would be modeled on the Foreign Intelligence Surveillance Act (FISA) court that was created in 1978. This court approves national security surveillance on US soil. Earlier these decisions had been the prerogative of the president. The court has almost never rejected requests for surveillance warrants although at times they have modified them. The court has also complained at times that evidence presented to the court was not well verified. George Bush carried out surveillance without bothering to go to the court on a number of occasions..

The suggestion of such a court is obviously an attempt to establish some type of legal legitimacy for the drone program by providing judicial oversight that could then be touted as due process. As of now, the due process is simply the operation of the hidden group that advises the president on who should be added to the kill list. The president makes the ultimate decision. Usually, due process is understood as the accused being charged and brought before a court with legal representation, where he or she can know the charges and the evidence against him or her and have his lawyer question that evidence. Such a model does not fit with the prevalent view of the US administration which considers the globe a battlefield between the US and Al Qaeda. Suspected terrorists are not criminals accused of a crime but unprivileged combatants in a battle. Given this conceptualisation of the status of the suspected terrorist due process, as understood in charges against cirminals, does not really enter into the situation. The stark contradiction between the legal framework of the war on terror and normal legal processes should be emphasized more.

People are rightly horrified at the idea that the President,in effect, becomes judge, jury, and executioner. The processes by which the decision to kill are made have no input from the accused and involve no formal charges, simply an assessment that the suspect is an imminent threat to the US, where "imminent" could mean as little as that the person is thought to be planning attacks against the US or its forces. No one from outside the closed system is allowed input into the process.

The situation is little changed if a secret court were to be involved. The evidence presented would be from those who want a suspect declared a legitimate target. No one is present to argue against that evidence except the judge. The court would end up being for the most part a rubber stamp for administrations requests. If there was some resistance or if the process seemed to slow and cumbersome, the administration would probably simply go ahead on its own, as happened with the FISA court under Bush. However, in politics perception is probably at least 80% of reality so the court idea could come to fruition.

Robert M Chesney a law professor at the University of Texas said:“We’ve gone from people scoffing at this to it becoming a fit subject for polite conversation." Chesney said court approval for adding names to a kill list is not beyond the realm of political possibility, at least for US citizens. Chesney noted further:“People in Washington need to wake up and realize the legal foundations are crumbling by the day,”

Senator Dianne Feinstein, a Democrat from California and chair of the Senate Intelligence Committee, promised to review proposals to establish a secret court. She was supported by Senator Angus King, an independent from Maine. King said:“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." His remarks suggest the conventional idea of due process, which is never going to have a place with respect to terror suspects unless the war conceptualisation is changed to a view of the terrorist as a criminal.

Brennan disclosed that the Obama administration had actually held talks internally about the feasibility of such a court. Brennan said:“I think it’s certainly worthy of discussion. What’s that appropriate balance between the executive, legislative and judicial branch responsibilities in this area?”

If such a court were to be formed its jurisdiction would likely be limited to approving names for a kill list rather than approving drone strikes. Many believe though that extending the court's review to foreign suspects would infringe on the role of the president as commander in chief. Senator King felt that the court would be constitutional only if limited to ruling on names of American suspects to be placed on the kill list. Apparently, there is concern about judicial oversight only if US citizens are involved.

Of course all this does nothing to dampen concerns about civilian deaths in the strikes, how decisions are made on targeting foreign suspects, or about public disclosure about the strike rules and procedures. As William Banks, a national security law expert at Syracuse University put it:“In terms of the politics and the optics, aren’t you in the same position that you are now? It’s still secret. The target wouldn’t be represented. It’s a mechanism that wouldn’t satisfy critics or advance the due process cause much.”

Hina Shamsi of the ACLU's national security project said that the drone court would actually represent a step backward. A better approach would be extradition and criminal prosecution of suspected terrorists. However this misses the point. This is conceptually a war. In a war you do not charge your opponent with a crime. If you apprehend an opponent he or she is held in effect as a prisoner until hostilities end. Of course in the war on terror, hostilities never end and so the logical extension of that is indefinite confinement without charge as happens in Guantanamo, for the most part.

Shamsi continues: “I strongly agree that judicial review is crucial. But judicial review in a new secret court is both unnecessary and un-American.”But FISA does exactly the same type of thing and has been in place since 1978. In the war on terror, secrecy is as American as apple pie.