A new chapter by Professors Amos Guiora and Jeffrey Brand–“Establishment of a Drone Court: A Necessary Restraint on Executive Power“–has been receiving a fair amount of media and blog attention. The chapter differs from some prior calls for a “drone court” in seeing the Foreign Intelligence Surveillance Court (FISC) not as a model, but rather as a lesson in what not to do–a “non-starter,” in the authors’ words. Nevertheless, the chapter argues, we need a special “Operational Security Court” (OSC) comprised of already sitting Article III district and circuit judges (selected through a far different process from FISC judges) to strike the right balance between the government’s need to protect operational (and national) security and the rights of those targeted for drone operations to contest their targeting (through security cleared lawyers) ex ante.
There’s a lot to say about the chapter, but let me jump right to the punchline: It’s a dangerously misguided solution to the wrong underlying problem. Below the fold, I elaborate on both points.
I. Why Ex Ante Drone Courts Are the Wrong Solution
I’ve written before at some length, both in a February 2013 Lawfare post and in a longer-form piece on targeted killing and judicial review in the George Washington Law Review, about why a specialized court to hear ex ante disputes about drone targets is a terrible idea. Interested readers should check out either the short or longer version of those arguments. But in a nutshell, here are some of the most significant flaws with the idea, broken out thematically:
- Article III concerns. As readers hopefully recall, the debatable basis on which courts have upheld the FISC’s unique model of ex ante, in camera adjudication is by analogy to ordinary search warrant procedures–on the theory that the warrant application is ancillary to a subsequent criminal (or civil) proceeding that itself satisfies Article III’s case-or-controversy requirement. That fiction is increasingly hard to square with the nature of FISC review–especially of surveillance conducted pursuant to non-warrant authorities such as section 215 and section 702. But it remains a necessary fiction. And as I wrote last February, “In contrast, there is no real argument that a ‘drone warrant’ would be in contemplation of future judicial proceedings–indeed, the entire justification for a ‘drone court’ is to pretermit the need for any subsequent judicial intervention. In such a context, any such judicial process would present a serious constitutional question not raised by FISA, especially the more that the substantive issues under review deviate from questions typically asked by courts at the ancillary search-warrant stage of a criminal investigation.” Perhaps with these concerns in mind, Professors Guiora and Brand propose having the putative target represented by security cleared counsel before the OSC–presumably with an eye toward satisfying Article III’s requirement of adverse parties. But whereas the Article III case or controversy exists in the FISA context, if at all, even at the ex parte stage, it’s not clear to me that importing another lawyer here would create a case or controversy where one does not already exist–especially if that lawyer isn’t really representing his client, but is rather serving as some kind of public advocate (as I assume he’d have to, lest the target learn of his status as a target).
- Article II concerns. More fundamentally, ex ante review has the potential to raise serious separation of powers problems, especially insofar as Professors Guiora and Brand would condition the ability of the Executive Branch to use lethal force–even in self-defense–on judicial approval. I wrote about this in far more detail in my February 2013 post, but the short version is that, if one accepts that the Constitution confers any unilateral military power upon the Executive Branch, a proposal that would prevent uses of such power until and unless a federal judge signs off strikes me as deeply problematic on both constitutional and practical grounds. Indeed, that’s why even FISA has a pair of emergency exceptions–provisions that allow the President to act in cases in which he does not have time to obtain prior judicial approval. But if this proposal included such an exception, it’s hard not to imagine that the exception would soon swallow the rule, given the nature of these operations (and the often fleeting moments in which they can be carried out).
- Legitimacy concerns. Part of why such an approach is problematic is not just because of the constitutional concerns it raises, but also the pressure it would place on the OSC judges. As I explained last year, “even if one could design a legally and practically workable regime in which such a tribunals could operate, its existence would put irresistible pressure on federal judges to sign off even on those cases in which they have doubts.” Consider the analogy to law enforcement uses of lethal force, where it would be impossible to require law enforcement officers to obtain judicial review before they use lethal force in defense of themselves or third persons–since the entire legal question turns on what was actually true in the moment, as opposed to what might have been predicted to be true in advance. Without such facts, are judges really going to tie the Executive Branch’s hands? To the contrary, I have to think that such truncated and fact-deprived review “would most likely lead to a more expansive legal framework within which the targeted killing program could operate, one sanctioned by judges asked to decide these cases behind closed doors; without the benefit of adversary parties, briefing, or presentation of the facts; and with the very real possibility that the wrong decision could directly lead to the deaths of countless Americans.”
- Competency concerns. Related to–but distinct from–the legitimacy concern is the competency concern. After all, “it would be next to impossible meaningfully to assess imminence, the existence of less lethal alternatives, or the true nature of a threat that an individual suspect poses ex ante.” Thus, what, exactly, are judges resolving in these proceedings? Here’s what the chapter suggests judges would evaluate:
 The definition of target must be narrowly defined and applied;  There must be a compelling state interest to kill the target;  That compelling interest must include a showing that there is an imminent and significant threat to citizens of the United States or its allies;  The definition of imminence must be narrowly defined and applied; and,  Application of the principle of “alternatives” is essential; that is, the Executive must convince the Court that national security will be harmed if the individual is not killed which in turn suggests that the Executive must demonstrate that the target cannot be captured.
Of these five determinations, only the first one–the definition of target–can meaningfully be adjudicated beforehand. Whether the government has a compelling interest depends on the exact circumstances in which the target is found, as does whether imminence and alternatives were properly determined. All of those issues can only be adequately and accurately assessed after the fact–as in the context of wrongful death actions for law-enforcement uses of force after and in light of Tennessee v. Garner.
- Logistical concerns. Finally, there’s the question of why an entire new court (the “OSC”) is needed at all. What’s wrong with giving the U.S. District Court for the District of Columbia exclusive original jurisdiction over these proceedings–as the Supreme Court has effectively provided in the secrecy-laden Guantánamo habeas cases? Even if one believes that ex ante judicial review of drone strikes is constitutionally and pragmatically feasible, why reinvent the wheel when there are perfectly good judges sitting in a perfectly good courthouse replete with experience in highly classified proceedings? Again, despite Professors’ Guiora and Brand’s best efforts, readers may gravitate toward the analogy to the FISC. But FISA was enacted at a very different period in U.S. history, before ordinary district courts had such substantial experience handling highly sensitive national security secrets. If we had it to do all over again, would we really create another specialized national security court? Keep in mind that the last one Congress created–the Alien Terrorist Removal Court–has never been used, and for good reason.
These five sets of concerns are why I’ve suggested, in both the Lawfare post and the GW Law Review essay, that the far wiser approach is an ex post civil suit for nominal damages pursuant to an express cause of action created by Congress that, among other things, waives sovereign and official immunity and abrogates the state secrets privilege. As the Lawfare post concluded, although there are lots of reasons to think such a cause of action is at best a least-worst solution, “If folks really want to provide a judicial process to serve as a check on the U.S. government’s conduct of targeted killing operations, this kind of regime, and not an ex ante ‘drone court,’ is where such endeavors should focus.”
II. Why the Absence of Remedies for Drone Targets Is the Wrong Problem
But in reading through Professors’ Guiora and Brand’s chapter, it occurred to me that there’s a far deeper disconnect here–the view that what’s really missing from current U.S. national security and counterterrorism jurisprudence is a legal remedy for drone targets, specifically. To suggest that this is the problem is, in many ways, far more problematic than holding out a “drone court” as a putative solution. After all, as I’ve tried to explain in the past, there’s a far more pervasive–and pernicious–shortcoming in contemporary remedies jurisprudence: The absence of any cause of action for citizens to challenge violations of their constitutional rights by federal officers. Targets of drone strikes are no different, in this regard, from victims of prior unlawful governmental actions across the board–be they individuals who were tortured by the government, subjected to unlawful surveillance, racially profiled by the police, or deprived of their property rights without due process. The accountability gap when it comes to federal government malfeasance is not the least-bit specific to drone strikes–and, indeed, isn’t even limited to national security cases more generally (even if some of the specific doctrines are). Thus, if Professors Guiora and Brand truly believe that “the distinguishing feature of a vibrant democracy is the ability . . . to demand that decisions that might compromise individual rights be subject to meaningful review,” a drone court isn’t just the wrong solution; it’s a solution to the wrong problem.
Whatever one thinks of the merits of any individual governmental counterterrorism policy, the real problem is the absence of ex post remedies writ large. And a drone court won’t do anything to solve that.
[Update, 12/17/14, 12:13 p.m.: The authors of the proposal I critiqued in this post have penned a reply, which is available here.]