The Role of the Judicial Branch during the Long War: Drone Courts, Damage Suits, and FOIA Requests

What role, if any, do courts have to play in regulating the use of drones for targeted killing? Critics of the status quo would like greater transparency and accountability in regards to targeted killings. In addition to constitutional concerns, some worry that the executive branch is violating International Humanitarian Law (IHL). These skeptics contend that the lack of judicial oversight and the opacity of the government’s legal position risks the deaths of innocent foreign civilians, violates democratic accountability norms, erodes our compliance reputation with allies, and helps to recruit a new generation of anti-American insurgents. Even if the current approach is lawful, many worry about future administrations or other governments that may adopt drone strikes without sufficient IHL protections. The United States judiciary itself is often reluctant to aggressively intervene in national security matters and other legal issues arising out of armed conflicts. This chapter suggests that the judiciary may play an important role in the debate over the executive branch’s decisions regarding IHL, even if it declines to speak to the substance of such cases. First, advocates may use courts as a visible platform in which to make their arguments and spur conversations about alternative, non-judicially mandated transparency and accountability measures. As they did with the trio of detention cases, advocates can leverage underlying constitutional concerns about the treatment of citizens to stimulate interest in the larger IHL issues. Second, litigants may use courts to publicize and pursue Freedom of Information (FOIA) requests and thus enhance transparency. Even if courts decline to grant FOIA requests, the lawsuits can generate media attention about what remains undisclosed. Third, and most robustly, Congress may pass legislation that would facilitate either prospective review of kill lists through a so-called drone court or remove procedural barriers to retrospective damage suits for those unlawfully killed by a drone strike. Even the threat of such a judicial role may influence executive branch behavior. While this chapter remains skeptical that courts will ever reach the merits on IHL questions, the chapter concludes by suggesting that creative use of the judiciary has helped insert IHL into the public debate over targeted killings to encourage greater accountability. It discusses the executive branch’s behavior in the shadow of the judicial and legislative branches. First, even as the Obama administration failed to acknowledge drone strikes explicitly, a number of government officials gave speeches providing some sense of the justifications for and the limitations upon targeted killings. Second, members of the Obama administration began leaking documents providing extensive details on legal questions surrounding targeted killings, including some relating to the application and interpretation of IHL norms. Lastly, the Obama administration efforts to institutionalize its targeted killing practices may enhance compliance with IHL norms and create more significant internal oversight and review. This final part concludes by noting additional reform measures to bolster these protections in the absence of a stronger judicial role.