Former Obama administration Acting and Deputy Solicitor General Neal Katyal has an interesting op-ed today in the NYT that criticizes the idea of an Article III “drone court” and proposes instead a “National Security Court” inside Article II in which expert lawyers “represent both sides” of the issue, “a panel of the president’s most senior national security advisers” would adjudicate and issue “decisions in writing” subject to presidential override, and then those decisions would be “given to the Congressional intelligence committees for review.” Katyal does not tell us precisely what would be adjudicated within the executive branch. His reference to the “fast-moving and protean nature of targeting decisions” suggests that he thinks the targeting decisions themselves (as opposed to targeting criteria or the determination of who is placed on a targeting list) would subject to executive branch adjudication. And he does not tell us for sure which type of targeting decisions would subject to adjudication, but implies broadly that all “executive decisions to target and kill individuals” would be.
Katyal makes many good points about why judges are not suited to such targeting decisions and why giving them that responsibility would fragment accountability for the drone strikes. I think he overstates judges’ inability to act quickly, for they often act very quickly in the FISA context. And in any event, most drone court proposals concern placing individuals on target lists – a decision that can take takes many weeks and even months of intelligence work and deliberation even within the Executive branch. Moreover, Katyal doesn’t explain why the supposedly “lightning-fast” targeting decisions that are not suited for judges in an ex ante process could be accommodated to the elaborate internal executive branch adversary process he envisions. I also think he is wrong to infer from the low FISA Court rejection rate that the Court does not have powerful ex ante effects on the types of applications brought to the Court in the first place.
But the real “problem” with Katyal’s proposal — beyond its possible overbreadth in subjecting all individualized targeting decisions to the elaborate executive branch process — is that it is hard to see how it is much different from what Klaidman and Becker-Shane describe as the extant and pretty robust executive branch process for high-value target list decisions (and targeting criteria more generally). Katyal’s proposal adds formality to the current process, and would substitute “expert lawyers” for the already-partly-antagonistic interests of lawyers in State, DOJ, DOD, and the Intelligence Community. And he would appear to insist that Congress be more informed about the actual deliberation and decisionmaking process than it currently is. These are important steps, but for those who are already skeptical about the intra-executive branch process, they will be seen as pretty small steps that bring little solace.