Targeted Killing: Litigation

The President's Speech: A Quick and Dirty Reaction--Part 4 (Hedging on the Drone Court)

By Benjamin Wittes
Friday, May 24, 2013, 7:11 AM

There are a number of areas in the president's speech yesterday in which Obama publicly aligns himself with critics of his administration, while promising in hard terms very little. As I described yesterday, he spent a lot of time criticizing the idea of endless war under the AUMF---while not concretely committing himself to ending hostilities. He criticized Guantanamo and indefinite detention, without promising to release detainees who pose a serious threat yet cannot face trial.

One of the more blatant of these areas is Obama's comments about the idea of additional review mechanisms for drone strikes:

Going forward, I have asked my Administration to review proposals to extend oversight of lethal actions outside of warzones that go beyond our reporting to Congress. Each option has virtues in theory, but poses difficulties in practice. For example, the establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority. Another idea that’s been suggested---the establishment of an independent oversight board in the executive branch---avoids those problems, but may introduce a layer of bureaucracy into national-security decision-making, without inspiring additional public confidence in the process. Despite these challenges, I look forward to actively engaging Congress to explore these---and other---options for increased oversight.

Notice here what the president is not promising. He is not promising to support a drone court. He is not promising to support proposals like Neal Katyal's or Jen Daskal's for an enhanced, court-like internal executive review mechanism. He is only promising to have his administration "review [such] proposals" and saying that he will "actively engag[ing] with Congress to explore" such ideas.

Nobody can possibly object to this, and I certainly don't, but it is notable that the president nowhere hints what sort of outcome he expects from his engagement. This is a way of signaling respect for the ideas---and the underlying idea that he needs to be on the side of "increased oversight"---without actually committing his administration to doing anything concrete.