Considerable attention is being paid in Congress, the media and the blogosphere to the use of drones – remotely piloted aircraft — against U.S. citizens and others. Thoughtful observers have suggested that decisions whether to launch drone attacks on U.S. citizens should be subject to judicial review, possibly in a "national security court" (a term that for many has unwanted connotations, like the unfortunately-named Department of Homeland Security).
A former acting U.S. solicitor general has suggested a variant: an internal "drone court" within the Justice Department, in which staff lawyers taking sides would argue for and against proposals to use drones and then advise the president. We are skeptical of both approaches.
First, before any decision is made on whether any new institution is needed, we have to know more than can be gleaned from the Department of Justice memorandum leaked to NBC News in February. The underlying analyses by the Office of Legal Counsel ought to be made public — with the redaction of whatever factual matters truly need to be kept secret. And by "public" we mean not just the leaders of the House and Senate Intelligence Committees, but all of Congress and beyond that, Americans in general. Given the corrosive effect the use of drones has already had on public opinion in countries whose democracies we hope to support, policy on this subject is simply too important to be made in the dark and without access to the administration’s best legal thinking.
The case for referring drone issues to a federal court, traditional or new-fangled, is easily answered: use of this potent form of weaponry presents a policy issue properly left to the political branches of government, Congress and the Executive. The federal courts have nothing to contribute to decision-making on such issues, and it would squander their reputation to ask them to place their imprimatur on what is, at bottom, a policy question. We cannot imagine, for example, amending the Administrative Procedure Act to authorize judicial review of Executive Branch drone decisions. Why, then, go further and vest the decision directly in the courts?
Nor do drone issues call for a quasi-judicial procedure within the Executive Branch, using some kind of adversary system. There are infinite ways the Executive could structure its internal decision making, but to fixate on process is to sublimate what is, in the end, a question of policy. Resorting to the judicial model and the adversary system is an instinctive reaction for lawyers trained in the common law tradition.•