The most interesting element in Scott Shane’s interesting story on the growing pressure for a Court to vet drone strikes (which quotes Bobby several times) is that the ACLU opposes it. Shane says that Hina Shamsi of the ACLU (these are Shane’s words) “said that a drone court would be a step backward, and that extradition and criminal prosecution of suspected terrorists was a better answer.” And then he quotes Shamsi: “I strongly agree that judicial review is crucial . . . But judicial review in a new secret court is both unnecessary and un-American.” The ACLU (according to this WP story) appears instead to support judicial review via a damages action in public, along the lines that Steve and others have proposed.
To my mind the ex post damages action has fewer constitutional problems than ex ante vetting by a secret court. But I think that, to satisfy presidential prerogatives and the demands of classified information, it much more likely that what we end up with (if we end up with anything new in this area) is a weak-tea FISC-like ex ante vetting system without ex post damages review. If I am right, we are at the beginning of a movie we have seen before, with the GTMO habeas litigation: a human rights NGO brings lawsuits that aim to stop a practice but that end up narrowing it a bit but also putting it on a firmer and more legitimate legal foundation that enables it to continue with less political or legal controversy. This is what can happen when objections about the substance of a practice are articulated through lawsuits and arguments about legal foundations, separation of powers, and process.