Constitution Check: Would a “drone court” be unconstitutional?

National Constitution Center

Predator_drone
Lyle Denniston looks at the concept that judges or Congress should have some say in the process of using drone aircraft to target suspected terrorists.

The statements at issue:

“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. … A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones. …Creating a 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.”

– The New York Times, in an editorial on February 14, titled “A Court for Targeted Killings.”

“Some politicians, pundits and professors have suggested that ‘kill lists,’ drone strikes and targeting protocols be submitted for ‘independent judicial review’–essentially, that federal judges ought to be assigned the task of monitoring, mediating and approving the killer instincts of our government. This is a very bad idea.

Retired U.S. District Judge James Robertson, of Washington, D.C., in an op-ed column in The Washington Post on February 17, titled “The wrong venue for drone review.”

“The drone court idea is a mistake. It is hard to think of something less suitable for a federal judge to rule on than the fast-moving and protean nature of targeting decisions. … Putting aside the serious constitutional implications of such a proposal, courts are simply not institutionally equipped to play such a role.”

Neal K. Katyal, Washington attorney and former Acting U.S. Solicitor General, in an op-ed column in The New York Times on February 20, titled “Who Will Mind the Drones?”

We checked the Constitution, and…

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From the time of the Constitutional Convention until now, the separation of powers lodged in the national government was understood to be essential to Americans’ liberty. James Madison went so far as to suggest, in Federalist No. 47, that “the accumulation of all powers … in the same hands … may justly be pronounced the very definition of tyranny.”

Of course, the three branches are not sealed off entirely from each other, but there are some core functions of each that cannot be shared. No matter how eagerly some policymakers want to put some legal restraints on the Obama administration’s policy of targeted killing by drones in waging war on terrorism, it is a near-certainty that the idea of handing to a civilian court the power to decide who could be killed, and when, would not withstand constitutional scrutiny.

It would turn judges into functioning adjuncts to the president’s “war cabinet,” and give them a veto power over a policy that, however audacious or questionable, is still a part of the process of waging war.

Courts can judge the constitutionality of some exercises of war powers, when someone claiming to have been wronged can bring a lawsuit, but that is judicial, not military, work. The Supreme Court, for example, overturned President Harry Truman’s seizure of the nation’s steel mills in 1952 in the midst of the Korean War, because the steel industry went to the judicial branch with a constitutional grievance.

And the Supreme Court, during the war on terrorism, ruled in 2008 that Guantanamo Bay detainees have a constitutional right to challenge in a regular civilian court their prolonged confinement–in a case filed by detainees through their American lawyers.

One of the reasons that the Supreme Court can exercise that kind of power is that it has remained detached from the waging of war, and it can exercise an independent judgment over the constitutional dimensions of war.

Some say that setting up a drone court would be no different from giving judges the power to approve search warrants, or the power to judge life-or-death issues raised in capital punishment cases. But those, again, are judicial functions, carried out in the context of genuine legal “cases or controversies,” in constitutional terms.

Imagine what would have happened in 1945, when the U.S. government chose to use atomic bombs as way to try to bring an end to the war against Japan, if the B-29 bomber, Enola Gay, could not be dispatched until an “atomic bomb court” signed off on the flight plans and the target. That would have been a constitutional anomaly, indeed.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

The administration’s drone policy has produced a yearning among some, perhaps many, for some independent review of the use of the power to call for the execution of an individual, even an American citizen, when suspected of being a terrorist threat. In an internal administration “white paper” that was leaked to the media recently, the Justice Department strongly resisted any form of judicial review, and that was hardly surprising.

Under the Constitution, if there is to be some oversight of the use of drones, and especially of the choice of individuals to be killed by such methods, that has to be done by Congress–another branch that is politically accountable. Congress would have the option (and this was an alternative suggestion by attorney Neal Katyal in his column in The Times) of creating a quasi-independent review panel within the executive branch, to function rather like the “inspector generals” do within executive agencies.

It is sometimes too easy, when a problem of governance newly arises, to forget the Madisonian view that concentration of government power is constitutionally dangerous. If there is a problem of accountability and transparency with the current targeted killing program, the answer lies with the political, not the judicial, branches–that is, until the unlikely day that a targeted individual can get into court before a drone strikes.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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