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After a Decade of Drone Strikes, Lawmakers Ponder Judicial Oversight

John O. Brennan’s nomination for CIA director has fueled a surge in congressional exploration of legislation to rein in the use of drones, both abroad and domestically.

Members of the House and Senate Intelligence committees are proposing legislative language to create a new court to oversee the targeted killings of U.S. citizens in foreign countries suspected of terrorism. Others are weighing whether to define how drone strikes can be used away from “hot” battlefields like Afghanistan and weighing new privacy safeguards for drone surveillance in the United States.

But most of the ideas are still being fleshed out, and some could face opposition from the Obama administration and others.

Brennan is widely credited as the architect of President Barack Obama’s drone strike program, although several dozen strikes were conducted by the George W. Bush administration.

At Brennan’s Senate Intelligence Committee nomination hearing Feb. 7, and then the next day, senators began discussing creating a court similar to the Foreign Intelligence Surveillance Court, which issues surveillance warrants. That court was created by the Foreign Intelligence Surveillance Act (PL 95-511).

“As the committee begins preparing the intelligence authorization act for fiscal year 2014, I ask that you work with me to contemplate legislative solutions, such as the creation of an outside judicial process similar to the FISA court, that might provide an independent perspective in the distinctive case of a U.S. citizen who is a senior operational leader of al Qaeda,” wrote Angus King, I-Maine, in a letter to Intelligence Chairwoman Dianne Feinstein, D-Calif. and her vice chair, Saxby Chambliss, R-Ga. Feinstein said at Brennan’s hearing that she will review such legislative proposals.

On the House side, Intelligence Committee member Adam B. Schiff, D-Calif., has been working up his own proposal for a FISA-court-like review process that would emphasize when a U.S. citizen is targeted. He said the range of options includes reviews that could be offered either beforehand or afterward.

“I think we need to try to develop a mechanism and a process where those that are making the decisions know it will be the subject of scrutiny or review,” Schiff said, adding that he has discussed the idea with committee staff but has not yet broached it with Chairman Mike Rogers, R-Mich. A spokeswoman for Rogers declined to comment on his views on a proposal to create such a court.

Another committee member, Peter T. King, dismissed the notion of establishing a court in an interview on MSNBC Feb. 8, saying he wouldn’t want to create a situation where “we held back because we wanted to feel good about ourselves or hand it over to a court.”

Chris Anders, senior legislative counsel for the American Civil Liberties Union, dismissed the idea from a different perspective: He said that existing criminal courts are already equipped to handle such situations.

“There is no need for any new court. They’re fully capable of handling it,” Anders said. “It’s great that Sen. Feinstein and Sen. King and others are concerned and interested in due process protections and having judicial review, but the mechanisms are already there.”

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