Editors’ note: In this post, Professors Brand, Guiora, and Barela reply to Steve Vladeck’s December 2 post, “Drone Courts: The Wrong Solution to the Wrong Problem,” which addressed an article by Professors Brand and Guiora.
We are grateful for the thoughtful commentary by Professor Vladeck regarding our recent paper, “Establishment of a Drone Court: A Necessary Restraint on Executive Power,” soon to be a chapter in the book The Legitimacy of Drones: UCAVs for Cross-Border Counterterrorism edited by Steven J. Barela (Ashgate Press, Summer 2015). Indeed, Professor Vladeck’s post begins to accomplish one of the goals that led us to write the chapter in the first place – to engage in a constructive dialogue about a very complex question that we believe is fundamental to the survival of our democracy: Does the Executive Branch have the unbridled authority to engage in drone strikes that target US and non-US citizens and along the way kill innocent men, women and children without any effective oversight or check by the Congress or the courts and without the knowledge of the citizenry? There are many issues wrapped up in that question, involving complicated constitutional issues, moral questions, philosophical conundrums, and practical realities – after all, no one would be so naïve to deny that many threats are real, sometimes imminent, or that the Executive Branch has the authority to act to protect national security. Thus, our first reaction to the post is thank you: Thank you for engaging in a dialogue with us and with others to discuss these critical issues which we believe are fundamental to the sustainability of the Republic.
That gratitude, however, cannot and should not mask fundamental disagreements we have about the proper role of the branches of the government and their ability to help find the right balance in the liberty and national security equation. The Constitution mandates an effective role for all branches of government to combat threats to the national security, and, all branches are fully capable of playing a significant role in that struggle. Thus, our response focuses on the underlying premises of our proposal, its intent and parameters, and, our hopes for the future.
A Return to an Appropriate Separation of Powers
The starting point is simply this: The Executive Branch does not have the unilateral authority in all circumstances to launch attacks almost certain to kill. Our article is rooted primarily in the ingenious theory of the separation of powers that our Founding Fathers wisely made the linchpin of our constitutional democracy. Thus, we write in our chapter:
The relationship of the separation of powers doctrine to the preservation of individual rights bears special emphasis in today’s post-9/11 environment in which proponents of unbridled executive power belittle the importance of individual rights when it is claimed that the security of the nation is at stake. That simplistic logic ignores a fundamental truth about our democracy, which holds that absent appropriate checks and balances individual liberty is likely to be sacrificed. It is critical that each branch of the government have a role in decision-making that affects individual life or liberty, or, conversely, that no branch of the government should be able to make such decisions on its own.
Of course, these thoughts are not ours alone. They echo the language of Justices Kennedy and O’Connor expressed in post-9/11 decisions, including Hamdi v. Rumsfeld and Boumediene v. Bush. Thus, Justice O’Connor wrote in Hamdi: “[W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government.”
And Justice Kennedy wrote in Boumediene: “The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.”
That is our starting point as the Bush and Obama administrations conduct a drone war that is unimpeded by any external restraint or mechanism for accountability. In light of our underlying premise, we take issue with Professor Vladeck’s claim that the proposal raises “serious separation of powers issues” by requiring judicial approval of drone strikes ex ante. In addition to the fact that we do not propose ex ante approval in all cases, precisely the opposite is true. We seek to restore a balance of power that is now totally absent to promote, in the words of Justices O’Connor and Kennedy, “accountability” and “liberty” and to prevent “the condens(ing) of power” into a single branch of government.
The Specific Parameters of Our Proposal
Our proposal is at bottom a simple one: To have a cadre of independent Article III judges trained in the difficult task of determining whether cause exists to launch a drone strike that almost certainly will kill its intended target(s) and likely inflict casualties on innocent victims in proximity. The post correctly notes that we view the current Foreign Intelligence Surveillance Court (the FISC) as a non-starter. History has proven its initial detractors on the left and the right entirely correct – a non-adversarial court with input solely from the Executive Branch cannot be an independent check on the actions of the Executive Branch no matter how well-intentioned the judges may be. The data (99.9% of Executive Branch requests to engage in foreign intelligence have been granted) and the recently expressed frustrations of sitting or former FISC judges, which we reprise in our chapter, bear witness to that reality.
Professor Vladeck wonders why we would create a special court with Article III judges rather than, for example, giving the DC Circuit exclusive jurisdiction over the proceedings. In this regard, our proposal is based on the notion that a national security expertise is required, and that familiarity with complex national security issues is important. We believe that a separate court could achieve those goals and provide continuity and consistency in pursuit of the difficult task of finding an effective formula to determine a proper balance between oversight and the need for the Executive Branch to protect the national security. Moreover, we believe that geographic diversity would be a further bulwark against the undue usurpation of power by the Executive Branch. We do agree, however, that a court like the D.C. Circuit engaging in independent judicial review of drone strikes, regardless of how unlikely it would be for the D.C. Circuit to sign up to such a task, would be far superior to the current state of affairs in which the Executive Branch acts with no restraint at all.
That conclusion leads to another aspect of our proposal that bears emphasis: Repeatedly, we note the difficulty of the task of reining in executive authority, and we state that we do not have all of the answers. Our proposal is a starting point, not a final landing point.
The Competency of the Court
Proponents of unilateral executive power to launch drone strikes or, indeed, to engage in any national security related decision-making, repeatedly pose the specter that no branch of government is competent to make such decisions except the Executive Branch. In fact, that is one of the primary critiques of our proposal. The logic has a certain surface appeal given the secretive, cloak and dagger world in which the nation’s national security apparatus operates. That surface appeal quickly evaporates, however, when one looks at the decisions that are actually required for effective oversight – decisions which courts are capable of making and which they make all the time – decisions about compelling state interests, imminence, and alternative means to accomplish a purpose. The bald, unsupported assertion in the post that only the “definition of target can meaningfully be adjudicated beforehand” is incorrect and were it true it would lead to two erroneous conclusions: At best, it underestimates the ability of jurists trained in decision-making to make factual determinations. More critically, the claim that virtually all of the determinations we propose cannot be made prior to the fact (i.e. the drone strike) is, in fact, a devastating indictment of the Executive Branch and its current decision-making processes. If it is true that such determinations cannot be made prior to the fact, how can we possibly have any confidence in the need to launch any drone strike? At bottom, confidence in Executive decision-making is really the issue and we maintain that such confidence can only be engendered when the premises that led to the decision are critically questioned – the same assumptions that underlie our judicial system and the theory of the separation of powers itself.
Professor Vladeck makes a corollary argument that is equally dismissive of judicial competence – namely that judges cannot withstand pressure from the government to make decisions consistent with Executive Branch’s desire in the area of national security. Quite the contrary! The judicial landscape is replete with examples of courageous judicial decisions contrary to U.S. government desires, including decisions by judges in the post-9/11 era dealing with national security. For example, whether one agrees or disagrees with his opinion, would D.C. District Court Judge Richard Leon agree with the assertion that federal judges cannot act independently in the face of U.S. government pressure in light of his recent ruling in Klayman v. Obama upending the government’s pervasive surveillance program which hauled in all so-called meta-data of every cell phone call in the United States? Our hunch is that Judge Leon would vehemently disagree.
Professor Vladeck rhetorically asks if “without facts”, “are judges really going to tie the Executive Branch’s hands?” Of course, the answer to that query is no. However, the premise of the question is wrong. Our proposal is not intended to replicate the FISC, where facts in the possession of the court are totally controlled by the Executive Branch and not subject to adversarial examination. We propose instead a burden on the Executive Branch requiring a showing of specific criteria based on specific facts subject to cross-examination by counsel. In that context, it would be dismissive of and a disservice to those who sit on the bench to contend that they are not capable of making decisions or without the constitutional fortitude (literally) to do so fairly and independently. Thus, despite contentions to the contrary, our proposal is neither about “truncated and fact-deprived review” nor could it become a process where cases are decided “behind closed doors without the benefit of adversary parties.” We also reject the post’s conclusions, fueled by misconceptions about our proposal, that there exists “the very real possibility that the wrong decision could directly lead to the deaths of countless Americans.” It is precisely that kind of post-9/11 rhetoric that has allowed the Executive Branch to consolidate its unilateral control to the exclusion of the other branches of the government – rhetoric that a reasonable process can help to deescalate.
We agree that truly imminent threats to the national security pose a difficult problem for judicial review. While we believe that the specter of immanency is often used to justify unilateral action, we also realize that threats often are imminent and that any proposal requiring judicial review must deal with that reality. Thus, built into our proposal is a two-step procedure for unilateral action upon a sufficient showing by the Executive Branch as to its need – the filing with the Court of an affidavit by the Executive Branch followed by post-hoc review to determine whether the claimed need for unilateral action in fact existed. Professor Vladeck is correct that the Executive Branch could abuse any such exception, including the one we propose. Again, given history and the abuse of power post-9/11, we are under no illusion that the Executive Branch will act in good faith. Nonetheless, we believe that forcing the Executive Branch to declare under oath why an “imminent threat” exists might rein in unfounded statements of immanency and perhaps restrain future unwarranted action. And, as we note in our chapter, even if the court did not achieve those goals, at least there would be a record to permit the review at some point of the efficacy of a deadly drone policy – a result far short of what we hope for but one surely worth pursuing in a democracy.
Two Final Fundamental Thoughts: Article III and Remedies
Professor Vladeck raises two other thoughts that are fundamental to his analysis and, it turns out, fundamental to our response – one involves Article III and the other involves the scope of the remedy we propose. With regard to Article III, Professor Vladeck writes that “there is no real argument that a ‘drone court’ 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.” Hence, he concludes, there is no case or controversy within the meaning of Article III.
Professor Vladeck is correct that in the drone context, unlike the FISC surveillance cases, there might not be a future judicial proceeding. The reason for that, however, is the finality of the action about to be taken by the Executive Branch. There is no contemplated subsequent judicial proceeding because there is nothing left to decide – the assassination and attendant death and injury have already occurred. In fact, it is because of that finality that the judicial proceeding we propose is so critical. It is the only chance to insure that the Executive Branch is held accountable in ways that the Framers intended and that the individual or individuals targeted for assassination have some modicum of representation to help insure that such dramatic and final action is warranted. It is for that reason that we propose, contrary to Professor Vladeck’s assertions, that the lawyers appointed for the proceedings represent the target in absentia, despite the shortcomings that such a solution necessarily entails.
Thus, if there is any logic to the Article III critique it is a macabre logic. Can it possibly be that Article III could be eviscerated because there is nothing left to try after the killing has taken place? To reach that conclusion would, in essence, make the Executive Branch the arbiter of the scope of Article III, a result our constitutional democracy cannot abide.
Finally, it is Professor Vladeck’s suggestion of a “deeper disconnect” in our proposal that really helps us to articulate what is truly at stake and the remedy that we believe essential to sustain our democratic institutions. Our proposal is attacked for its narrowness and for ignoring the “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 right by federal officers.” That assertion ignores completely the importance of the broad separation of powers principles that lie at the heart of what we propose.
Yes, our proposal is a response to an urgent need to rein in what has become the principal weapon in the present conflict, the use of which use has increased nine-fold in the past six years (from 50 drone strikes under Bush to 450 under Obama). We are under no illusion, however, that the drone court alone will remedy the other ills that Professor Vladeck rightly identifies – unlawful surveillance, racial profiling, or those deprived of property, among them. However, what would go a long way to solving all of those ills is a system that respects a true separation of powers to protect the liberties that we all cherish. Our drone court proposal is, indeed, a small piece of the puzzle, but its example is an important one, reminding us of what’s truly at stake. There is an eerie coincidence with the horrors of Ferguson and Staten Island and Cleveland with the ills that we highlight in our proposal – a concentration of authority in the enforcement branch of the government to the exclusion of a fully functioning and independent judiciary.
The irony is that as we articulate these thoughts, we end on common ground with Professor Vladeck – common ground that we believe will encourage future dialogue and even common proposals to protect against Executive Branch abuse. In our proposal, we emphasize that we do not seek to cast aspersions or to engage in unnecessary, divisive “finger-pointing.” Rather our goal is to create an effective mechanism that bolsters the constitutional foundations of our democracy and protects individual rights, which are compromised by unitary, unfettered executive action. The common ground we share with Professor Vladeck and others with whom we suspect we share common values is indeed the right place to begin that dialogue.