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Wednesday, February 13, 2013

Would A Federal District Court for Drones Increase Collateral Damage?

One of the more interesting recent proposals for curing the "due process" deficit in the Administration's targeted killings program is for Congress to create a federal court to approve drone strikes.  Senator Dianne Feinstein, among others, is championing this strategy.

I don't think it will work.  Here's why.

First, the court would be modeled after the super-secret FISA court for approving government requests for surveillance in terrorism cases.  Such courts impose a form of judicial review, yes, but there is little transparency and no adversarial process.

But there are bigger problems.

As some of my colleagues have already explained, it is unlikely and improbable that such a court could authorize specific operational strikes. That would be difficult to implement in real time, and might even be unconstitutional for infringing on the Executive Branch's commander-in-chief power. Rather, such a court would approve the administration's decision to place an individual's name on an approved target list.  A court would review the legitimacy of this decision with the power to remove the name if the individual does not meet the standard for being a functional member of al-Qaeda.

Although this is more plausible, I still don't think it will work.  In the end, I think it would just push the administration to avoid targeted killings and would have the opposite effect.  It would increase, not decrease, collateral damage.  Let me explain.

Suppose the government has previously used the kill list to govern the selection procedure for targeted killings.  The list serves as a clearinghouse for debates and ultimately conclusions about who is a high-value target.  If the administration decides that the individual should be pursued, he is placed on the list. If the administration decides that the individual is of marginal or no value, he is removed from the list or never placed on it to begin with.

Now imagine that a court is requiring that the list be approved by a judicial process.  Why would the administration have any incentive at all to keep adding names to the list?  Why not stop using it entirely?  It could then rely exclusively on signature strikes -- an important legal development well documented by Kevin Heller in his forthcoming JICJ article on the subject.  Such strikes would not be banned by the court because the US would not know exactly who it is bombing.

(I'm assuming for the sake of argument that the US is still engaged in an armed conflict with al-Qaeda and that the AUMF or some other statutory authorization for the President's pursuit of the conflict would still be in place.)

Essentially, this would be a case of willful blindness -- a concept well known to criminal law scholars.  The real benefit of targeted killings is that the administration knows the exact threat and only targets one individual.  That has changed warfare tremendously.  But the court system would push the military back towards the old system: target groups of individuals who are known terrorists or enemy combatants -- but you don't know exactly who they are.  You just know they are the enemy.  That's the system that reigned in all previous conflicts.  And there would be a disincentive to ever acquire more specific information.  Why have a drone hover over an area with known terrorists in order to determine, through surveillance, the exact identity of the individual's there?  That would only trigger the jurisdiction of the drone court.  So ignorance would maintain the legality of the strike.

I don't think that is what Congressional staffers have in mind.