Let's debate Judicial Review of drone killings.

Senator Feinstein yesterday repeated the suggestion made here that judicial review of GWOT targeting of individuals for execution by drone or other means is a serious possibility.

Most of these killings are done in circumstances that the military would describe as "deliberate," that is, without a serious time constraint.  That being the case, "deliberate" execution decisions could be reviewed by a FISA like federal court BEFORE THEY ARE CARRIED OUT.  pl

Comments

[jonst]

I can see this working, to a similar extent, like the strategic bombing campaigns of WWII. They will never, despite how much damage done, run out of "vital targets" to go after. The target list will just grow, and go on and on, until we're taking out Gunga Din. Who, after all, it will be proffered, did a lot of damage in the end, with that damn trumpet.

[jonst]

Bugle, sorry, damage done with a bugle, of course.

[505thPIR]

"We are what we do every day"...

Lets also talk thresholds...what is the threshold, the body of work that makes one targetable? That is certainly a marker that is not going to be static.

[Nightsticker]

Colonel Lang,

I can remember when we considered the NKVD/KBG
to be brutal murderers when they did some "wet work"
on a political foe of the regime.

I oppose drone murders by US Government officials
against any persons [even those that privately I
might think deserve it].

I just don't want the Federal Government to have
powers like this; I know it will abuse them.

I am willing to accept that every decade or so
some plot will succeed and that there will be
casualties. The Republic can survive a few burning
buildings; it will not survive giving faceless
bureaucrats the authority to kill.

Nightsticker
USMC 65-72
FBI 72-96

[The beaver]

Colonel

How good is Brennan's Arabic?
https://www.youtube.com/watch?feature=player_detailpage&v=mKUpmFb4h_U#t=319s

Thank you

[turcopolier]

Beaver

According to those who know him well, not very well. pl

[turcopolier]

505th PIR

I asked about judicial review. pl

[Abu Sinan]

She also said, of the around 3,000 people killed in these drone strikes, that the number of innocents killed were "in the single digits".

That type of propaganda and the unbelievably low amount of civilians killed as collateral damage reminds me of Israeli disinformation.

[Hank Foresman]

Pat, I would argue that it requires more than Judicial Review; we are talking a life, that the threshold for the government must be "beyond a reasonable doubt" that the person the government seeks to kill is a "clear and present" danger to the security of the United States and that nothing short of killing is possible. There needs also to be a representative, because of the nature of what we are talking about, who is part of the Government but who has the responsibility of being the "Devils Advocate" for the person the government wishes to execute.
I of course understand all of this will be done in secret.
It is a slippery slope and one that I hope as a nation we can not further slide into an abyss.
I noted that recently General McCrystal indicated that the United States is despised in the Middle East because of our drone program...maybe we need to ask ourselves if the cost of using drones is greater than the return.

[jonst]

Some commentary on the idea of judicial review. I offer it absent any editorial comment (for the moment) from me.

http://www.lawfareblog.com/2013/02/a-fisc-for-drone-strikes-a-few-points-to-consider/

[JustPlainDave]

The issue would seem to hinge on whether one believes that it is possible to have a truly fair capital trial in absentia. Would that mode of trial then remain firewalled as a "exigent circumstances" court, or would it begin to bleed through to be applied in other "convenient" areas (drug lords, foreign based organized crime, etc.)?

[Charles I]

You'd think if "they" thought JR of any merit, be it personal, procedural, or in prosecuting the GWOT, they would have stuck it in, and classified it too.

Words mean what they say, not what the judges say. Besides, sometimes judges balk, and are not timely - timely as a function of imminent, which we just don't have time to have a voir dire about at the moment.

No JR worth the name is gonna save this bit of victor's justice. Truly exigent de jure assassinations may be considered, given the public record on collateral damage - other innocents blown to bits w/o so much as a how do you do - the exception rather than the rule given any reasonable judicial interpretation of "imminent", be it by SCOTUS or the ICC.

Enemy combatants now = everyone anywhere as deemed.

Multiple domestic agencies now have Predators being used domestically, worthily, and scads of others. More are coming.

So much has been let slide since, as I fixate on, Shrub moved that $700M, never mind the stopping of the vote. None of that has ever been taken back. Its up to you and your Congress to put as much of this back in the bottle as you best can.

On the other hand, they look like so much fun I'm gonna buy one each of the biggest and the smallest toy ones I can and fly it around my new digs up north.

[VietnamVet]

Colonel,

Judicial review of the killing humans is a requirement of civilization.

Killing of those outside of civilization, barbarians, has been sanctioned since the rise of agriculture. It is human nature to define others as sub-human and not worthy of the grief and sorrow that murder entails.

The basic fallacy of the Global War on Terror (GWOT) is that it has adopted the extra judicial trappings of warfare to perpetuate the transfer of wealth to the super rich but has not actually raised taxes or implemented the draft which are needed to win the War. Also; how in the world, do you win a war against a billion and half Muslims?

If the USA is not at war with Islam, then there must be judicial review to sanction the killing of others. Without oversight, these killings are no different than tyrannical knights beheading of this or that Serf in the Dark Ages.

[turcopolier]

VV

"to perpetuate the transfer of wealth to the super rich" How's that? pl

[mbrenner]

We have had a decade's experience witth Judicial Review of the type being discussed. The evidence points to the clear conclusion that the FISI based arrangement doesn't work. That's to say, it has become a rubber stamp for the Executive. Indeed, the record shows that the DOJ refuses to allow the "judges" to see the evidence on which their recommendation is made - on national security secrecy grounds. The "judges" have shown themseves to be even more pliable than the regular courts. I see no procedural way around the hard reality that there is no method to square the circle.

Please give me the liberty of reposing a question that I raised on another Thread: what exactly is the threat that allows anyone to make even a prime face case for these extra-legal actions? It simply does not exist - except in our fevered imaginations.

[turcopolier]

mbrenner

Does your despair make you content? pl

[VietnamVet]

Colonel,

A Quaker Lobby estimates that the Pentagon has lost 102 billion dollars a year from losing track of inventory and leases, and contractor profits. No GWOT and the excess money does not end up in the fat cat’s wallets.
http://fcnl.org/issues/checkbook/missing_102_billion/

At the same time the FED has been dropping trillions of dollars on Wall Street to keep it propped up.
http://www.bloomberg.com/news/2011-08-21/wall-street-aristocracy-got-1-2-trillion-in-fed-s-secret-loans.html

Taxpayer’s money is not providing for more jobs for Americans but instead is resulting in the increased income inequality.
http://en.wikipedia.org/wiki/Income_inequality_in_the_United_States

[turcopolier]

VV

The corruption money has not been stolen by the "merchants of death." It has been stolen by present and former US employees and their native "friends," pl

[Harper]

It is my strong belief that we have reached another watershed moment in the fight against Executive Branch over-reach. After eight years of Bush-Cheney and the first four years of Obama, the checks and balances from both Congress and the Courts has eroded so badly that there is now, long overdue, a pushback. Senator Ron Wyden led the charge early this week, with the letter from a total of eleven Senators (eight Democrats) to President Obama demanding that the secret DOJ memos be released before the Brennan hearing. When the non-classified white paper was leaked to Michael Isikoff, it forced the President's hand, because the language of the white paper was so transparently unconstitutional that it set off a real reaction. Coming out of the Brennan hearing, Wyden and two other Senators--Chambliss and Burr--made clear that they are not going to tolerate a dribbling out of the secret papers and correspondences.

In the hearings, clearly Diane Feinstein, or someone on her staff, was on this website before the hearings, because her formulation about the need for a FISA Court-type body to oversee and approve any assassination targeting, was almost verbatim from the posting here by Col. Lang.

The claimed authority to kill American citizens or even foreign nationals outside of combat zones is such a weighty and presumptious matter that I do not believe that even a FISA court type of body will be sufficient. All three branches of the Federal government must have an advance say in such weighty matters. There was a reason the Founders put the Congress forward as the first among equal branches of the Federal government because they had a profound fear of temptation for tyranny in a strong executive. There was also a reason they were clear in spelling out how to impeach a president. They expected more frequent impeachments as a preferred alternative to regicide. They were right. The Federal Court of Appeals for the District of Columbia recently issued a harsh ruling, striking down Obama's recess appointments, but they delivered a much broader message: The president does not get to interpret the actions of the legislative branch, and no matter how much these Constitutional standards have fallen out of practice, they still stand and must be reinforced.

This is not a fight that will be settled in the course of the Brennan confirmation fight, regardless of the outcome. This is a pendulum swing long overdue. It is going to be an important battle. I do not believe that President Obama will win.

Senator Jay Rockefeller commented at the Brennan hearings that the committee has just completed a 6,000 page review of the torture interrogations policy, which he compared favorably to the Church Committee report. There are winds of change in the air in Washington.

[seydlitz89]

Sir, it is difficult for me not to consider the history of the Cold War. The USSR was a true existential threat for the US, perhaps the only true existential threat we have ever faced, but we never allowed our basic and essential Constitutional safeguards to be questioned . . . in terms of the state's ability to target the individual US citizen - through whatever means including drones - even an individual US citizen operating in the interests of the USSR would not have been so handled . . . I think especially of the Walkers. Should they have simply been taken into the garden and shot? Would that have enhanced our national security?

The whole notion of "imminent threat" rests on the assumption of a looming existential threat, an "absolute enemy" which is a Leninist concept . . . no thank you from a Clausewitzian perspective.

How do the Walkers compare to the "crotchbomber" who sent the GOP into fits? From a strategic theory perspective, it is difficult to take any of this seriously . . .

[r whitman]

I fail to see any difference betweeen a drone kill and a kill made with a sniper rifle from 500 yds on the same target. No one on this blog would ask for a JR on the sniper killing.

[mbrenner]

Colonel

My despair leaves me extremely discontent with the leaders and political culture of the U.S. I lose no sleep worrying about terrorist attacks on the United States. By temperament, I am anything but an optimistic - much less a Pollyana. I simply know of no tangible threat by any stretch of the imagination. Out there but kept a secret, or already neutralized by John Brennan and his mighty men? Impossible. The Obama administration is so eager to reap political advantage from any event or pseudo-event that has the slightest sniff of terrorism that Eric Holder immediately drags himself away from uprooting marijuana farms in Medocino County to have his photo taken congratulating the FBI on fabricating another plot.

9/11 was real. There was something to worry about at that time. Today we are just ridiculous. Sorry if i sound snide. But I'm just the messenger.

[Mark Logan]

I tend to agree with Professor Brenner that the FISA court is too weak to be trusted. Since the incidents are rare, I would suggest the Chief Justice of the Supreme Court, as that appears to me to be the least manipulable position in the Judicial branch.

[The Twisted Genius]

A FISA like federal review court is an excellent solution for those federal executions by drones or JSOC operatives that the Executive thinks are necessary. A Judicial brake on Executive exuberance is a needed thing. I've seen the FISA court system work in interagency operations. It forced the FBI to think through and justify its proposed actions. Agents were exasperated at the work they would have to put into the justification, but no one thought the courts unnecessary. Of course that was before 9/11. As mbrenner said, the FISA courts surely fell under the dark side fervor that fell over most of our government and a good part of the American people.

IMO the idea that some knowledgeable high level government official can determine that anyone or their child can be secretly labeled an imminent threat marked for a drone strike is finally causing a lot of uneasiness in the general public. Hopefully this uneasiness will grow into something that will lead us away from the dark side. When that happens, I'm sure a FISA like federal court governing these executions would be quite effective

[William R. Cumming]

Normally judicial review is after the incident or event not prior review!
Some states automatically indict all law enforcement officers that have killed someone in the line of duty. So perhaps automatic indictment and then judicial review of that act by judge and jury?

FISA was labeled a "reform" when initially enacted!