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A FISC for Drone Strikes? A Few Points to Consider…

Thursday, February 7, 2013 at 9:11 PM

There is an increasing amount of talk about judicial review for at least some decisions to place specific persons on targeting lists for the use of lethal force outside of a combat zone (drones are not the only platforms that might be used, after all).  As I think we may at last be on the verge of a real debate on this topic, I want to weigh in with a few preliminary points that I hope folks will bear in mind:

Reviewing Nominations, Not Firing Decisions

I encourage everyone to bear in mind what proponents are (mostly) talking about.  The action that reformers want to subject to judicial review, by and large, is not the immediate decision to strike at a particular time and using a particular means.  There’s no way to do that in timely fashion, in my view.  The more serious proposals concede that point, and focus on whether there ought to be judicial review of some kind in connection with the nomination process pursuant to which particular persons may be pre-cleared for the possibility of using lethal force, a decision made long in advance of an actual attack decision.  This largely if not entirely eliminates the speed concern (I assume a serious reform proposal might also entail an exigent circumstances exemption of some kind).  Bearing that in mind, it seems to me that the real action in this debate should focus on what benefits (short and long term) truly could be gained by a judicial review process of this limited sort, what costs might follow, and how such a system might be designed to strike the best tradeoff if there must indeed be a system.  Of course, there is also the question whether creating any such system is constitutional in the first place, especially if the system is framed to encompass more than just US persons, but let’s bracket that for now.

Are Judges Interested?

Some judges want absolutely nothing to do with this. Not that this is dispositive.  But I was struck by what recently-retired District Judge John Robertson (D.D.C.) had to say when this came up at an ABA panel we were on a few months ago (the audio is here, and the statement came toward the very end if I recall correctly).  Though very much a judge associated with the view that the judiciary plays a critical role in checking the executive in national security-related litigation (the topic of our panel), he made very clear his hostility to the idea of judicial involvement in death warrants.  (And that’s without considering the possibility of warrant-issuing judges finding themselves the object of suit or prosecution abroad.) Of course, other judges could feel differently.  But at any rate, the anecdote contributes to my next point…

Be Realistic About the Amount of Deference Such Proceedings Would Involve

A core benefit to judicial review, presumably, is that judges might detect and reject weak evidentiary arguments for targeting particular persons.  I wouldn’t bet on that occurring often, however.  Judges famously tend to defer to the executive branch when it comes to factual judgments on matters of military or national-security significance.  I’ve argued that they should not always do so, but that doesn’t mean they won’t.   Especially when the stakes are as high as they will be represented to be in such cases.

Non-Adversariality and the FISC Model

If a judicial review system is attached to the existing FISC structure, bear in mind that this is not an adversarial system.  One could have a guardian ad litem/special advocate stand-in counsel, of course.  I’ve argued for that in related settings.

Better Ex Ante Approval than Ex Post Damages

Steve has posted about the alternative of providing a post-hoc nominal damages action.  I need to think about it more, but if I had to choose I’m pretty sure I’d endorse the ex ante warrant instead.  At common law the prospect of post-hoc damages suits (for trespass) had much to due with the emergence of a warrant system for searches/  Officials needed certainty ex ante that they would not face a lawsuit, and it was not enough to know that various doctrines made it unlikely they’d actually personally owe lots of money.  So too here, I think, if there must actually be judicial involvement.