Establishment of a Drone Court: A Necessary Restraint on Executive Power

In this article we propose the establishment of a Drone Court to review Executive Branch drone decisions prior to their execution. That said, we harken back to Chief Justice Earl Warren’s wise words in Miranda v Arizona in which he called on, if not challenged, Congress and others to recommend alternative means to protect those subject to police interrogations. In the spirit of Chief Justice Warren’s entreaty, we are not wedded to the establishment of a Drone Court. Moreover, we do not claim to have all of the answers. We are, however, wedded to the creation of a process that will ensure that U.S. counterterrorism be conducted in accordance with the rule of law and the principles of morality in armed conflict which can effectively and concretely be monitored and measured. In other words, we advocate for the use of drones falling into alignment with the precepts of legitimacy explored in this volume. We present our proposal in the context of two realities that must be noted for the record. The first reality is that since the horrific attacks on September 11, 2001, the United States has struggled, as it never has in its history, with finding the appropriate balance between the protection of individual rights and the demands of national security. Repeatedly, as we note below, particularly in the area of surveillance, national security has trumped individual rights leading to abuses that have shocked the nation and led to calls for reform. Those abuses have occurred despite the formal existence of institutions intended to maintain the balance of power among the branches of government. Thus, the Foreign Intelligence Surveillance Court (FISC) was established pursuant to the Foreign Intelligence Surveillance Act (FISA) supposedly to insure that Executive Branch decisions with respect to surveillance were carried out in a way to protect the rights of those surveilled. The reality, however, is that fundamental flaws in the structure of the FISC, detailed more fully below, have turned the court more into a rubber stamp of Executive decision-making than a constitutional buffer between citizens and Executive Branch abuses that FISA sought to eliminate. Indeed, the mere existence of FISC has been cleverly used by the Executive branch to bolster claims that the massive surveillance programs disclosed since 9/11 pass constitutional muster – after all, goes the argument, the FISC said it was OK! We are under no illusion that the same process might not occur were a Drone Court to be established. It too, if not constructed properly with safeguards to maintain its independence, could be hijacked and used as a shield for abusive Executive decision-making rather than as a sword to insure appropriate checks on the Executive Branch. The task will not be easy. The lessons learned from past abuses must be incorporated into the Drone Court structure and the Court must have sufficient power to insure that the Executive responds in good faith to the requirements imposed on it. As we make our proposal, we recognize that such a structure has yet to be created in America’s 250-year struggle to find the appropriate balance between individual rights and national security. We believe, however, that if we keep that struggle in mind, along with past dismal failures, we may have the best hope of succeeding in the future. It is with that mindset that this proposal is offered, knowing the perils that may exist, including the misuse by the Executive Branch of a judicial order sanctioning its decision-making in the name of national security.