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Brennan himself told King at last week’s hearing that he thought the idea was “certainly worthy of discussion” and that the administration had wrestled with just such a proposal. But, he said, courts are not best suited for those decisions.
“Our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield, as well as actions that are taken against terrorists,” Brennan said. “The decisions that are made are to take action so that we prevent a future action, so we protect American lives. That is an inherently executive branch function to determine.”
There might be other, non-judicial options, said Benjamin Wittes, a senior fellow at the Brookings Institution.
“I am sympathetic to the idea of a more formal, institutional, internal review mechanism within the executive branch, perhaps legislated, preferably legislated,” he said. “The idea of a court — I think it has pretty prohibitive constitutional barriers. Frankly, I don’t like the idea of involving the judiciary in issuing warrants to kill people.”
Some of the panels that might consider a legislative proposal like King’s or Schiff’s are still trying to get information about the drone strikes. Leaders of the House and Senate Judiciary Committees sent letters last week to Obama requesting the classified Department of Justice legal opinions about targeted killings of U.S. citizens who are believed to be top members of al-Qaida or of related groups that were shared with the Intelligence Committees. A House Judiciary aide, asked about the court proposal, said the committee’s priority was to get those documents.
At a Judiciary Committee markup Feb. 7, where Feinstein discussed viewing the legal opinions, senators touched on the range of issues raised by drones.
Feinstein and Judiciary Chairman Patrick J. Leahy, D-Vt., said they were increasingly worried about how drones might be used domestically. Last year, Congress enacted a Federal Aviation Administration reauthorization law (PL 112-95) that directed the agency to issue new rules to integrate both government-owned and privately owned pilotless aerial vehicles into U.S. airspace by 2015.
“I am very worried about the privacy issues involved,” said Leahy. “Just because we have the technology available, does that mean we should use it?” A Judiciary Committee aide said that Leahy planned to hold a hearing on drones.
Last year, a number of lawmakers, including Sen. Rand Paul, R-Ky., Rep. Jeff Landry, R-La., Rush Holt, D-N.J., Edward J. Markey, D-Mass. and Austin Scott, R-Ga., filed legislation or amendments designed to improve privacy safeguards for domestic drones. None of the proposals became law, however. The FAA is considering the inclusion of privacy safeguards during its rulemaking process stemming from the FAA reauthorization measure.
Another drone-related subject that arose at the Feb. 7 Senate Judiciary markup was the expansion of drone strikes into new areas. Congress has considered altering the 2001 Authorization for Use of Military Force (PL 107-40) as the original target — the perpetrators of the Sept. 11 terrorist attacks — has morphed into other threats. But so far, it has not significantly tinkered with a rewrite.