Should a federal judge review the government's decision to launch a lethal drone attack against a suspected terrorist? A recently released Justice Department white paper on the targeted killing of a U.S. citizen has prompted calls for judicial intervention. While the instinct is right, any review scheme must strike the correct balance between liberty and security.
Most discussion is focused on creating a new court modeled on the Foreign Intelligence Surveillance Act of 1978 (FISA). Congress enacted FISA following revelations that the government had been eavesdropping on Americans' private communications for decades. FISA created a special court to review requests to conduct electronic surveillance of American citizens for national security purposes.
FISA sought to provide judicial oversight without sacrificing security. The government had to demonstrate individualized suspicion to obtain a FISA warrant, but was held to a less exacting standard than for ordinary criminal wiretaps.
FISA, however, provides a poor model for court review of drone strikes. Determining whether, and when, to launch a lethal strike can require time-sensitive decision-making ill-suited to careful judicial deliberation. Even if review addresses only the antecedent question of whether to place a person on a "kill list," judges will invariably defer to claims by executive-branch officials about the imminence of a threat and the necessity of a strike.
Pre-strike review, moreover, would place judges in the untenable position of having to sign death warrants -- a position judges are likely to resist. Judges, to be sure, make rulings every day with enormous consequences for human life and liberty. But they typically do so only after a trial, where both sides have presented evidence, and not -- as in the case of the FISA court -- in a secret proceeding based solely on the government's evidence.
A FISA review model would, in short, risk legitimizing drone strikes without providing any real check on their use.
The better course is to ensure meaningful review after the fact. To this end, Congress should authorize federal damages suits by the immediate family members of individuals killed in drone strikes.
Such ex post review would serve two main functions: providing judicial scrutiny of the underlying legal basis for targeted killings and affording victims a remedy. It would also give judges more leeway to evaluate the facts without fear that an error on their part might leave a dangerous terrorist at large.
For review to be meaningful, judges must not be restricted to deciding whether there is enough evidence in a particular case, as they would likely be under a FISA model. They must also be able to examine the government's legal arguments and, to paraphrase the great Supreme Court chief justice John Marshall, "to say what the law is" on targeted killings.
Judicial review through a civil action can achieve that goal. It can thus help resolve the difficult questions raised by the Justice Department white paper, including the permissible scope of the armed conflict with al Qaeda and the legality of the government's broad definition of an "imminent" threat.
Judges must also be able to afford a remedy to victims. Mistakes happen and, as a recent report by Columbia Law School and the Center for Civilians in Conflict suggests, they happen more than the U.S. government wants to acknowledge.
Errors are not merely devastating for family members and their communities. They also increase radicalization in the affected region and beyond. Drone strikes -- if unchecked -- could ultimately create more terrorists than they eliminate.
Courts should thus be able to review lethal strikes to determine whether they are consistent with the Constitution and with the 2001 Authorization for Use of Military Force, which requires that such uses of force be consistent with the international laws of war. If a drone strike satisfies these requirements, the suit should be dismissed.
Government officials, moreover, would be liable only if they violate clearly established legal standards. This limitation helps avoid chilling the use of drones where the law is uncertain, while still deterring their misuse.
Critics will contend that civil suits would mark an unprecedented intrusion into executive decision-making. But in recognizing the right of enemy combatants to seek judicial review of their detention through habeas corpus, the Supreme Court has made clear that even a state of war is not a blank check for the president. It misses the essential teaching of these rulings to insist that courts can review the government's decision to deprive a person of his liberty, but not his life.