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Why a “Drone Court” Won’t Work–But (Nominal) Damages Might…

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Sunday, February 10, 2013 at 5:12 PM

There’s been a fair amount of buzz over the past few days centered around the idea of a statutory “drone court”–a tribunal modeled after the Foreign Intelligence Surveillance Court (FISC) that would (presumably) provide at least some modicum of due process before the government engages in targeted killing operations, but that, like the FISC, would generally operate ex parte and in secret in order to protect the government’s interests, as well. Indeed, as Scott Shane reported in Friday’s New York Times, it appears that there’s already been debate over this very issue within the Obama Administration, and former Defense Secretary Gates appeared to come out in favor of the idea on “State of the Union” on CNN Sunday morning.

As I explain (in rather painful length) below the fold, I think there are formidable legal and policy obstacles standing in the way of any such proposal–obstacles that would largely (albeit not entirely) dissipate in the context of after-the-fact damages actions. Thus, if Congress and/or the Obama Administration is truly serious about creating a meaningful regime of judicial supervision (and I realize that this is a big “if”), its real focus should be on the codification of a statutory cause of action for nominal damages ($1) for those unlawfully injured by such operations (or their heirs)–and not on the creation of a new ex ante process (and tribunal) that would raise as many questions as it answers.

I.  Drone Courts and Article III

Although the “drone court” proposals floating around vary to some degree in their (sparse) details, one of the core ideas behind them is that such a body would operate much like the FISC–with the government proceeding ex parte and in camera before the court in order to obtain something tantamount to a warrant prior to engaging in a targeted killing operation. (It would presumably defeat the purpose, after all, if the target of the putative operation had notice and an opportunity to be heard prior to the attack.) The hardest question is what, exactly, the government would be seeking judicial review of at this stage… Some possibilities, among others:

  1. Whether the target is in fact a belligerent who can be targeted as part of the non-international armed conflict between the United States and al Qaeda and its affiliates;
  2. Whether the target does in fact present an imminent threat to the United States and/or U.S. persons overseas (although the definition of “imminent” may depend on the answer to (1)); and
  3. Whether it is in fact impossible to incapacitate the target (including by capturing him) in the relevant time frame with any lesser degree of force.

Leaving aside (for the moment) the potential separation of powers issues such review would raise, there’s a more basic problem: the possible absence of a meaningful “case or controversy” for Article III purposes.

The Supreme Court has long emphasized, as it explained in Flast v. Cohen, that one of the central purposes of Article III’s “case-or-controversy requirement” is to ensure that “the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” That is to say, “adversity” is one of the cornerstones of an Article III case or controversy, and it would be noticeably lacking in a drone court set up along the lines noted above.

The standard response to this concern is the observation that the same is true of the FISC–that, in most of its cases, the Foreign Intelligence Surveillance Court operates ex parte and in camera, ruling on a government’s warrant application without any adversarial process whatsoever. And time and again, courts have turned away challenges to the FISA process based upon the same argument–that the FISC violates Article III as so constituted (see, e.g., footnote 19 of the FISA Court of Review’s 2002 decision in In re Sealed Case).

But insofar as the FISC operates ex parte, courts have consistently upheld its procedures against any Article III challenge by analogy to the power of Article III judges to issue search warrants–a process defended entirely by reference to the Fourth Amendment, which the Supreme Court has interpreted to require a “prior judicial judgment” (in most cases, anyway) that the government has probable cause to justify a search–that is, as a necessary compromise between effective law enforcement and individual rights. As David Barron and Marty Lederman have explained, the basic idea is “that the court is adjudicating a proceeding in which the target of the surveillance is the party adverse to the government, just as Article III courts resolve warrant applications proceedings in the context of conventional criminal prosecutions without occasioning constitutional concerns about the judicial power.” And part of why those constitutional concerns don’t arise in the context of search warrants is because the subject of the warrant will usually have an opportunity to attack the warrant–and, thus, the search–collaterally, whether in a motion to suppress in a criminal prosecution or a civil suit for damages, both of which would be after-the-fact. (FISA, too, creates a cause of action for “aggrieved persons.”)

To be sure, it’s already a bit of a stretch to argue that FISA warrants are obtained in contemplation of future criminal (or civil) proceedings (which is part of why Laurence Silberman testified against FISA’s constitutionality in 1978, and why the 1978 OLC opinion on the issue didn’t rest on this understanding in arguing for FISA’s constitutionality), and it’s even more of a stretch to make this argument in the context of the FISA Amendments Act of 2008 (the merits of which have yet to be reached by any court…).

But the critical point for now is that this is the fiction on which every court to reach the issue has relied. In contrast, there is no real argument that a “drone warrant” would be in contemplation of future judicial proceedings–indeed, the entire justification for a “drone court” is to pretermit the need for any subsequent judicial intervention. In such a context, any such judicial process would present a serious constitutional question not raised by FISA, especially the more that the substantive issues under review deviate from questions typically asked by courts at the ancillary search-warrant stage of a criminal investigation (e.g., the second and third questions noted above).

Finally, as one footnote to the Article III issue, it also bears emphasizing that these concerns can’t be sidestepped by having a non-Article III federal court hear such ex parte applications. Although the Supreme Court has upheld non-Article III federal courts for cases “arising in the land or naval forces,” it has consistently understood that authority to encompass only those criminal prosecutions that may constitutionally be pursued through court-martial or military commission. The idea that Congress could create a non-Article III federal court to hear entirely civil claims arising out of military action is not only novel, but difficult to square with what little the Court has said in this field.

II.  Drone Courts and the Separation of Powers

In my view, the adversity issue is the deepest legal flaw in “drone court” proposals. But the idea of an ex ante judicial process for signing off on targeted killing operations may also raise some serious separation of powers concerns insofar as such review could directly interfere with the Executive’s ability to carry out ongoing military operations…

First, and most significantly, even though I am not a particularly strong defender of unilateral (and indefeasible) presidential war powers, I do think that, if the Constitution protects any such authority on the part of the President (another big “if”), it includes at least some discretion when it comes to the “defensive” war power, i.e., the President’s power to use military force to defend U.S. persons and territory, whether as part of an ongoing international or non-international armed conflict or not.  And although the Constitution certainly constrains how the President may use that power, it’s a different issue altogether to suggest that the Constitution might forbid him for acting at all without prior judicial approval–especially in cases where the President otherwise would have the power to use lethal force.

This ties together with the related point of just how difficult it would be to actually have meaningful ex ante review in a context in which time is so often of the essence. If, as I have to think is true, many of the opportunities for these kinds of operations are fleeting–and often open and close within a short window–then a requirement of judicial review in all cases might actually prevent the government from otherwise carrying out authority that most would agree it has (at least in the appropriate circumstances).  This possibility is exactly why FISA itself was enacted with a pair of emergency provisions (one for specific emergencies; one for the beginning of a declared war), and comparable emergency exceptions in this context would almost necessarily swallow the rule. Indeed, the narrower a definition of imminence that we accept, the more this becomes a problem, since the time frame in which the government could simultaneously demonstrate that a target (1) poses such a threat to the United States; and (2) cannot be captured through less lethal measures will necessarily be a vanishing one. Even if judicial review were possible in that context, it’s hard to imagine that it would produce wise, just, or remotely reliable decisions.

That’s why, even though I disagree with the DOJ white paper that ex ante review would present a nonjusticiable political question, I actually agree that courts are ill-suited to hear such cases–not because, as the white paper suggests, they lack the power to do so, but because, in most such cases, they would lack the competence to do so.

III.  Drone Courts and the Legitimacy Problem

That brings me to perhaps the biggest problem we should all have with a “drone court”–the extent to which, even if one could design a legally and practically workable regime in which such a tribunals could operate, its existence would put irresistible pressure on federal judges to sign off even on those cases in which they have doubts.

As a purely practical matter, it would be next to impossible meaningfully to assess imminence, the existence of less lethal alternatives, or the true nature of a threat that an individual suspect poses ex ante. Indeed, it would be akin to asking law enforcement officers to obtain judicial review before they use lethal force in defense of themselves or third persons–when the entire legal question turns on what was actually true in the moment, as opposed to what might have been predicted to be true in advance. At its core, that’s why the analogy to search warrants utterly breaks down–and why it would hardly be surprising if judges in those circumstances approved a far greater percentage of applications than they might have on a complete after-the-fact record. Judges, after all, are humans.

In the process, the result would be that such ex ante review would do little other than to add legitimacy to operations the legality of which might have otherwise been questioned ex post. Put another way, ex ante revew in this context would most likely lead to a more expansive legal framework within which the targeted killing program could operate, one sanctioned by judges asked to decide these cases behind closed doors; without the benefit of adversary parties, briefing, or presentation of the facts; and with the very real possibility that the wrong decision could directly lead to the deaths of countless Americans. Thus, even if it were legally and practically possible, a drone court would be a very dangerous idea.

IV.  Why Damages Actions Don’t Raise the Same Legal Concerns

At first blush, it may seem like many of these issues would be equally salient in the context of after-the-fact damages suits. But as long as such a regime was designed carefully and conscientiously, I actually think virtually all of these concerns could be mitigated.

For starters, retrospective review doesn’t raise anywhere near the same concerns with regard to adversity or judicial competence. Re: adversity, presumably those who are targeted in an individual strike could be represented as plaintiffs in a post-hoc proceeding, whether through their next friend or their heirs. And as long as they could state a viable claim for relief (more on that below), it’s hard to see any pure Article III problem with such a suit for retrospective relief.

As for competence, judges routinely review whether government officers acted in lawful self-defense under exigent circumstances (this is exactly what Tennessee v. Garner contemplates, after all). And if the Guantánamo litigation of the past five years has shown nothing else, it demonstrates that judges are also more than competent to resolve not just whether individual terrorism suspects are who the government says they are (and thus members of al Qaeda or one of its affiliates), but to do so using highly classified information in a manner that balances–albeit not always ideally–the government’s interest in secrecy with the detainee’s ability to contest the evidence against him. Just as Guantánamo detainees are represented in their habeas proceedings by security-cleared counsel who must comply with court-imposed protective orders and security procedures, so too, the subjects of targeted killing operations could have their estates represented by security-cleared counsel, who would be in a far better position to challenge the government’s evidence and to offer potentially exculpatory evidence / arguments of their own.

More to the point, it should also follow that courts would be far more able to review the questions that will necessary be at the core of these cases after the fact. Although the pure membership question can probably be decided in the abstract, it should stand to reason that the imminence and infeasibility-of-capture issues will be much easier to assess in hindsight–removed from the pressures of the moment and with the benefit of the dispassionate distance on which judicial review must rely. To similar effect, whether the government used excessive force in relation to the object of the attack is also something that can only reasonably be assessed post hoc.

And in addition to the substantive questions, it will also be much easier for courts to review the government’s own procedures after they are employed, especially if the government itself is already conducting after-action reviews that could be made part of the (classified) record in such cases. Indeed, the government’s own analysis could, in many cases, go along way toward proving the lawfulness vel non of an individual strike…

To be sure, there are a host of legal doctrines that would get in the way of such suits–foremost among them, the present judicial hostility to causes of action under Bivens; the state secrets privilege; and official immunity doctrine. But I am a firm believer that, except where the President himself is concerned (where there’s a stronger argument that immunity is constitutionally grounded), each of these concerns can be overcome by statute–so long as Congress creates an express cause of action for nominal damages, and so long as the statute both (1) expressly overrides state secrets and official immunity doctrine; and (2) replaces them with carefully considered procedures for balancing the secrecy concerns that would arise in many–if not most–of these cases, these legal issues would be overcome.

V.  Why Damages Actions Aren’t Perfect–But Might Be the Least-Worst Alternative

Perhaps counterintuitively, I also believe that after-the-fact judicial review wouldn’t raise anywhere near the same prudential concerns as those noted above. Leaving aside how much less pressure judges would be under in such cases, it’s also generally true that damages regimes don’t have nearly the same validating effect on government action that ex ante approval does. Otherwise, one would expect to have seen a dramatic upsurge in lethal actions by law enforcement officers after each judicial decision refusing to impose individual liability arising out of a prior use of deadly force. So far as I know, no such evidence exists.

Of course, damages actions aren’t a perfect solution here. It’s obvious, but should be said anyway, that in a case in which the government does act unlawfully, no amount of damages will make the victim (or his heirs) whole. It’s also inevitable that, like much of the Guantánamo litigation, most of these suits would be resolved under extraordinary secrecy, and so there would be far less public accountability for targeted killings than, ideally, we might want. That said, there are two enormous upsides to damages actions that, in my mind, make them worth it–even if they are deeply, fundamentally flawed:

First, if nothing else, the specter of damages, even nominal damages, should have a deterrent effect on future government officers, such that, if a targeted killing operation ever was carried out in a way that violated the relevant legal rules, there would be liability–and, as importantly, precedent–such that the next government official in a similar context might think twice, and might make sure that he’s that much more convinced that the individual in question is who the government claims, and that there’s no alternative to the use of lethal force.

Second, at least where the targets of such force are U.S. citizens, I believe that there is a non-frivolous argument that the Constitution requires at least some form of judicial process–and, compared to the alternatives, nominal damages actions litigated under carefully circumscribed rules of secrecy may be the only way to get all of the relevant constituencies to the table.

That’s a very long way of reiterating what I wrote in my initial response to the DOJ white paper, but I end up in the same place: If folks really want to provide a judicial process to serve as a check on the U.S. government’s conduct of targeted killing operations, this kind of regime, and not an ex ante “drone court,” is where such endeavors should focus.

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