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.”
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.
“I think many of us were a bit shocked to learn that we voted for the longest war in United States history or that we were authorizing a blanket authorization for the use of force against terrorism without any return to the conversation,” said Richard J. Durbin, D-Ill. “And I think it’s time. And I say that with great respect to the president.”
In written pre-hearing questions for Brennan, the Senate Intelligence panel asked him whether he would “support legislation to authorize the use of force outside of ‘hot’ battlefields and codify the standards for the conduct of targeted strikes, including through the use of remotely piloted aircraft.”
Brennan rejected the need for legislation, asserting, “I believe we currently have the authority to take action in such circumstances against al-Qaida and associated forces.”
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.