Last week, John O. Brennan, President Obama’s nominee for director of the CIA, faced some tough questions from the Senate Select Committee on Intelligence. Arguably one of the most interesting was posed by Committee Chairwoman Sen. Diane Feinstein (D-CA), who suggested during her opening comments that it might be time for the drones program to become declassified.
“I intend to review proposals for legislation… to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes,” Feinstein said in her opening remarks. But is such a court really the best way of ensuring accountability? It might not be.
The New York Times reports the Obama administration has already been debating the merits of such a court internally, but can’t arrive at a consensus view. An official is quoted as saying, “There are a lot of complexities. You’d need legislation and probably a new judicial body.”
The intricacies of creating a court like this should not be downplayed. For one, the question of precisely where in the decision-making process it would sit looms heavy. Would such a court vet the intelligence used to add names to the “disposition matrix” that governs how names are added to the kill/capture list? Would it review the use of those names in the “playbook,” which currently does not include C.I.A. operations?
These are important questions. Inserting any judicial process into intelligence analysis could upend the system-potentially becoming dysfunctional or paralyzed. Additionally, a judicial process within military decision-making could ruin military effectiveness (a court does not review every Concept of Operations, or CONOP, that a military commander draws up).
The separation of powers dictated by the Constitution is another large stumbling block. The legislative branch has the authority to declare war and the executive branch the authority to wage war; judicial review focused on how war is waged by the executive branch would pose innumerable problems.
The only feasible effectiveness of this court would be for its review of strike already struck, therefore judging their merits latterly. As American University law professor Steve Vladeck explained in a recent post on Lawfare, a workable system for reviewing potential strikes is legally and practically impossible.
Judging strikes after the fact, like a tribunal, poses serious problems, as well. Because the government’s case for targeted killings is based on an imminent threat, the court would potentially be predisposed to side with the government. Vladeck says such a system “would be akin to asking law enforcement officers to obtain judicial review before they use lethal force in defense of themselves or third persons.”
If creating a court to review potential strikes beforehand doesn’t make practical sense, and having one review them after the fact poses legal programs, what options are there to impose accountability on the drones program?
Vladeck suggests a court that can review disputed strikes and assign some kind of nominal damage to individuals who have been improperly targeted. This has some merit; it would reduce the danger of the court siding with the government as a matter of course and would avoid any troublesome meddling with Executive Authority. It would also provide a mechanism by which aggrieved innocent victims of drone strikes could seek redress from the government – something long overdue in the debate over drones.
On the other hand, maybe a court is just a bad idea in general. Last year in Foreign Affairs, Omar S. Bashir suggested an alternative: an independent reviewer, mandated by Congress and appointed by the President but granted total independence to review strikes and issue judgments. This idea, he argued, “is palatable to governments because it enables accountability without necessarily increasing transparency” (a primary concern for the intelligence community, which wishes to keep its sources and methods clandestine).
A Special Investigator General for Drone Strikes is appealing on a number of levels. Mr. Bashirm, however, is perhaps too eager to discount the likelihood such an executive agent would become politicized and self-marginalized. It is too easy to imagine a Kenneth Star-like circus around particularly controversial drone strikes.
Still, the idea of a new structure to manage accountability is the most appealing. From what the public has seen, the government’s legal justifications for targeted killings — including the assumption that they will continue indefinitely — is certainly unique. Maybe that warrants some new structure for holding the program accountable: an independent investigator or a new type of court.
Of course, all the questions surrounding the accountability of drone strikes rest on the assumption the program will be declassified to a degree sufficient for outside review. Unfortunately, drone strikes have arisen out of an intelligence community that is unbalanced and struggling to cope with the complex challenges of the world today. Maybe by reforming that community first, the answer of how to hold it accountable will become more clear.
Joshua Foust is an analyst who writes about international security and intelligence issues. He is a contributor to The Atlantic, and has written for the New York Times, Salon, Reuters, the Christian Science Monitor, World Politics Review and the Columbia Journalism Review. His website is http://www.joshuafoust.com.