U.S. 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.
Drone strikes have expanded dramatically in the Obama administration. Fewer than 50 took place during the Bush administration, while more than 360 strikes have been launched under Obama, according to the website The Long War Journal, which tracks the operations. The strikes have been credited with killing more than 70 senior al-Qaida and Taliban commanders in Pakistan alone since they began in 2004.
The chairman of the Senate Intelligence Committee, Dianne Feinstein, said Thursday 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."
Sen. Angus King Jr., in a letter Friday to senior leaders of the panel, suggested an "independent process similar to the Foreign Intelligence Surveillance Court to provide an appropriate check on the executive branch's procedure for determining whether using lethal force in a foreign country against a U.S. citizen would be lawful."
In FISA 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."
"But I certainly don't think judicial review or congressional review is needed to strike al-Qaida or other terrorists organizations," he said.