WASHINGTON — Lawmakers are considering whether Congress should set up a special court to decide when drones can kill American al-Qaida suspects overseas, much as a secret court now grants permission for surveillance. The effort, after CIA Director-designate John Brennan's vigorous defense of a drone attack that killed U.S. citizens, reflects a philosophical struggle in government over remote warfare.
The chairman of the Senate Intelligence Committee, Dianne Feinstein of California, declared that she intended to review proposals for legislation to ensure that drone strikes are carried out in a manner consistent with our values and the proposal to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes.
In Foreign Intelligence Surveillance Court proceedings, 11 federal judges review wiretap applications that enable the FBI and other agencies to gather evidence to build cases. Suspects have no lawyers present, as they would in other U.S. courts, and the proceedings are secret. The government presents its case to a judge, who issues a warrant or not.
The notion of something similar for drone strikes drew immediate criticism from human rights and legal groups, which contend that such a court must allow the accused to mount a defense.
It's not about evidence gathering, it's about punishment to the point of execution, said Mary Ellen O'Connell, professor of international law at the University of Notre Dame and a critic of the government's drone program. We have never thought people could be executed without some kind of trial.
A former CIA official reacted coolly, too, but from the opposite direction.
I think it is reasonable to ask the question under what circumstances the president can use lethal force against a U.S. citizen overseas, said Jeff Smith, former general counsel of the CIA. It's a frightening power, and I think we need to think very, very carefully about how that power is used and whether some judicial review is warranted.
In Thursday's confirmation hearing, Brennan defended strikes as necessary, saying they are taken only as a last resort, but he said he had no qualms about the strike that killed U.S. born cleric Anwar al-Awlaki, because of his roles in several terror attacks.
Brennan said people are never killed by CIA or military strikes if there is a way to capture them.