With the recent release of The Intercept’s Drone Papers, it is an apt time to revisit the imperative of creating a check on an executive branch exercising lethal force without any external constraint. The newly leaked documents provide irrefutable evidence of a lengthy process for killing with armed drones that has systematically excluded the other branches of government from a matter that strikes at the very heart of a government’s legitimacy. Drone policy has distorted legality, eschewed morality, and operated without sufficient data to assess efficacy. It is thus time to establish a “Drone Court” to rein in the executive branch and address the violation of a fundamental principle of our democracy: the separation of powers.
Some coverage of the new documents has emphasized the large number of people killed who are not targeted. This is a very disturbing problem, and the immense difficulties for compiling sound data are wreaking havoc on reliable investigations into the numbers. These obstacles include: impenetrable secrecy, attacking unknown individuals based on patterns of behavior (i.e., signature strikes), the perilous work of journalists covering drone strikes on the ground, and a definition of the “enemy” that has indeterminate breadth. This grave inability to know who is actually being killed — essential for determining efficacy — is underscored by The Intercept’s explanation of these documents as pointing to an “incalculable civilian toll.”
Perhaps most critically, however, the leaks demonstrate that the most common criticism of any effort to create a check on the executive is totally unfounded, i.e., that it must act without hesitation or interference for the sake of security. The reality is that there is indisputably sufficient time to engage in meaningful judicial review of drone strikes. The leaks reveal that the current approval process takes an average of 79 days. Thereafter a 60-day window opens for a drone strike to occur on the intended target. This four to five month time period establishes an essential truth — there is ample opportunity for an external judicial check.
This timing issue points to the crux of the problem: The Bush and Obama administrations have redefined “imminence” in a manner that no longer includes “immediacy.” Much has been written about the question of imminence, and I have personally worked on the historical treatment of this concept within the just war theory and the birth of international law. It is my view that the definition at stake is truly pivotal, and should not be taken lightly.
It is generally accepted that the executive has the constitutional power to act without interference from the other branches when the country faces an imminent threat. However, removing immediacy from imminence opens the door to unbridled executive power consistently justified by vague notions of a proximate threat that are impossible to track. This should be understood as a power grab by the executive. That is, by adopting the novel and subjective definition of imminence detailed by former Attorney General Eric Holder in 2012, the executive branch has successfully rearranged the playing field; it portends an effective removal of two out of three branches of the government envisioned by the Framers.
The “Drone Court” Proposal
In the spirit of full disclosure, I am the editor of the volume in which Amos Guiora and Jeffrey Brand advocate for the policy proposal of creating a “Drone Court” in the book’s culminating section. The Legitimacy and Drones project has concluded an investigation of drone policy through the three conceptual lenses of legitimate state action: legality, morality, and efficacy. Since terrorists pursue a strategy of provocation with the purpose of goading a government into an overreaction— or abuse of power— to erode that government’s legitimacy, the work provides a deep analysis of these three key parameters in 12 chapters.
The “Drone Court” proposal aims to integrate these three basic tenets and restore the balance of power among the branches of government as such balance is critical to the well-being of democracy. Namely, their proposal rests on the constitutional cornerstone of the separation of powers principle found in the landmark 2008 US Supreme Court Boumediene decision.
The fact that a policy proposal materialized was, in fact, an unforeseen and acutely welcome product of the project itself. I had come to know Guiora as both an accomplished academic author and an experienced practitioner who had taken part in targeted killing decisions as a JAG officer with the Israel Defense Forces. Guiora agreed to participate and brought the skilled and experienced scholar Dean Emeritus Jeffery Brand from the University of San Francisco School of Law onboard as a coauthor (now judge of the Alameda County Superior Court in California). Thus this policy proposal represents a unique composite of theory and practice.
The Current Debate
In the end, of course, the decisive question is what precisely would this “Drone Court” look like? Guiora and Brand have done extensive research into the existing model (i.e., the failed structure of the FISA court) and have put a great deal of thought into the sort of deference that must still be made to the executive branch. They provide substantial detail for their proposal: a rebuff of full secrecy and ex parte hearings; who will sit as judges; structure and appeals processes; guarantees of the right to confront and cross examine; burden of proof; credible, reliable facts; the definition of imminence; and a possible post hoc review.
But what is most important to understand about their proposal— and why it is particularly difficult to reject out of hand this work in progress — is that it is primarily an invitation to conversation. Guiora and Brand recognize the enormous complexity and great political difficultly of what is being recommended and humbly explain over and again that the “devil is in the details”:
In fact, creating a dialogue about appropriate institutions and processes to review drone attacks is one of our primary goals in authoring this chapter. We welcome the opportunity to address and discuss various critiques, and some concerns regarding the practicality of the proposed Court are, undoubtedly, valid and legitimate, they should not and must not be perceived to be cause for its rejection nor justify casting it asunder without careful consideration.
It has now been nearly a year since this policy proposal was first made available. To date, it has generated a genuine interest from the media as well as frank and valuable dialogue among scholars. One of the most engaging and constructive exchanges took place in these pages of Just Security with Steve Vladeck. In it, there are valid and interesting criticisms and rebuttals that can be revisited here, here, and here.
In addition, with each new revelation about the drone program, the media tends to cycle back to proposals that could help address the “new” problem. For example, one of the most instructive dialogues was the New York Times debate in the wake of the news of the accidental killing of two hostages with an armed drone in Pakistan at the beginning of 2015. Five different views from prominent experts were presented on the idea of a court approving drone strikes, and although they were somewhat divergent, there was indeed a consensus worth noting. All parties to the debate argue for some sort of real and robust check on the executive, whether in the form of advocacy for existing courts to apply the law properly, after-the-fact damages suits expressly authorized by Congress, a citizen’s rejection of counterterrorism policies, or more oversight from a serious and deliberative Congress. (In addition, one can also find other advocates for a type “drone court” elsewhere.)
It is my view that this growing consensus is well worth building upon. The exact shape of that check, and the particulars for carrying it out, are not at all clear or agreed upon. But there is indeed a foundation: The use of deadly force with drones cannot be exercised by executive fiat.