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Still More Drone Commentary – Anthony Clark Arend on Judicial Oversight of Drones

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Sunday, February 10, 2013 at 1:59 PM

Georgetown professor Anthony Clark Arend – old friend to many of us at Lawfare – has a new short post on whether judicial oversight of drones would be a good idea – or constitutional.  He is skeptical on both counts (this can be added to the list that Jack gave us earlier of commentary on the drone white paper that includes Michael Ramsey and Ilya Somin on originalism and a judicial role in review of US citizen targeting):

But what if there were a legislative act– approved by the President– establishing a specific arrangement for judicial review?

I am still inclined to think that if such act were subject to  judicial testing it would be found unconstitutional because it would be involving the courts in something that is inherently within the realm of the political branches– who is a combatant in an armed conflict.

Of course- this is not to say that I favor the current use of drones as a matter of policy, nor that I don’t worry about whether the drones are being used in a manner that complies with the laws of war. But those are concerns are different from the question of whether judicial review of drone use is constitutional.

I think this is right.  Arend also raises some questions about whether Congress could insist on a role in defining who can be targeted in war, or whether this treads impermissibly on the executive’s role.  Whether Congress could directly do this or not, it does seem to me that the administration would be on politically easier ground in saying, as Eric Holder did in last year’s Northwestern speech in the section on targeting American citizens, that not all “due process” is “judicial process” – if it were possible to point to statutory reform of the oversight process.  Or at a minimum some acknowledged special process (even if not statutory, but by agreement between Congress and the executive), by which putting an American citizen on a target list gives Congress a formalized mechanism to offer an independent, though necessarily secret, review.

Judicial review, ex ante or ex post, in my view is likely unconstitutional, and in any case it is a not a good idea – these are matters committed to the political branches.  A judge is not a proconsul.  The check in this matter rests with a political branch.  But it would be most solidly grounded for the long term – institutional settlement at its most fundamental – were the two political branches to come together in such a way as to provide a permanent, not merely ad hoc structure for oversight of this kind of particularly sensitive decision.  However, drawing from Jack’s earlier post, notwithstanding the desirability of statutory reform in this area, we should not hold our breaths.