I'm not sure if this is by accident or on purpose, but the New York Times yesterday proposed advanced judicial review of a huge swath of targeting in warfare against terrorist groups.
Consider the first paragraph of yesterday's Times editorial, which is entitled "A Court for Targeted Killings":
No American prosecutor can imprison or execute someone except on the orders of a judge or jury. That fundamental principle applies no less to the suspected terrorists that the executive branch chooses to kill overseas, particularly in the case of American citizens.
There are no dramatic factual errors in this editorial to joke about, but this paragraph describes a truly radical ideas. Most of the proposals floated for a so-called "Drone Court" have been limited to the targeting of citizens or limited to targeting outside of hot conflict zones. The Times, by contrast, starts with the notion that the fundamental principle that "someone" can't be killed "except on the orders of a judge or jury" applies "no less to the suspected terrorists that the executive branch chooses to kill overseas." The only distinction between the citizen and the non-citizen in the newspaper's formulation of things lies in intensification. The principle applies "no less" to the non-citizen, but---mathematical incoherence aside---it applies "particularly" "no less" to the citizen. The principle, what's more, is not geographically limited in any way. On its face, it covers all targeting of terrorists overseas.
Subsequent references to the court in the editorial do not limit the principle:
A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings [of terrorist suspects overseas], usually by missiles fired from unmanned drones.
. . .
A special court, which we first proposed in a 2010 editorial, would be an analogue to the Foreign Intelligence Surveillance Court that Congress set up in 1978. If the administration has evidence that a suspect is a terrorist threat to the United States, it would have to present that evidence in secret to a court before the suspect is placed on a kill list.
. . .
Creating an even stronger court to approve targeted killings is the first step Mr. Obama can take if he is serious about bringing national security policy back under the rule of law (emphasis added).
If the Times is really contemplating a body that does not merely review due process considerations for U.S. nationals added to the target list---a tiny set of people over time---but generally reviews targeting decisions irrespective of geography, it is talking about a massive change in the rules of targeting. Just at the level of case load, the work of the court would be, uh, substantial. According to the New America Foundation, there have been 350 drone strikes in Pakistan alone since 2004---all of them presumably targeting "suspected terrorists overseas"---and that's before we get to ground operations. Should all of these targeting decisions have been reviewed in advance in a litigation before a court?
Ironically, the Times's argument seems to focus only on targeted killing, which I take to mean strikes in which the target is a single individual. That formulation would seem to not cover so-called signature strikes, where the target is some group of people---perhaps individually unidentified, and thus unlisted in any specific target list---whose behavior bears some signature of enemy forces. But surely, the new Drone Court should review this sort of targeting too; after all, signature strikes are more controversial, not less, than personality strikes. And the first principle, at least as the Times articulates it, should apply at least as strongly to large numbers of suspected terrorists overseas as it does to any individual terrorist suspect, right? Come to think of it, the first principle, at least the Times's sweeping version of it, should apply no less on the hot battlefields than off them. If one takes the Times's formulation of the principle seriously, exactly which sort of targeting should not be reviewed by judges? The only hint of an answer to these questions lies in the single sentence: "The court would not be expected to approve individual drone strikes, and the executive branch would still be empowered to take emergency actions to prevent an impending attack."
I don't mean to mock, but the editorial offers not a whiff of humility---or even self-awareness---as it advances what would be a total revolution in the way we do targeting, a revolution based on a model of judicial pre-approval. I don't favor a Drone Court, but there are versions of it that involve serious ideas. One of the marks of seriousness has to be including some way of limiting the universe of targeting the proposal would cover.