For PBS: Dim prospects for drone accountability

Last week, John O. Bren­nan, Pres­i­dent Obama’s nom­i­nee for direc­tor of the CIA, faced some tough ques­tions from the Sen­ate Select Com­mit­tee on Intel­li­gence. Arguably one of the most inter­est­ing was posed by Com­mit­tee Chair­woman Sen. Diane Fein­stein (D‑CA), who sug­gest­ed dur­ing her open­ing com­ments that it might be time for the drones pro­gram to become declas­si­fied.

I intend to review pro­pos­als for leg­is­la­tion… to cre­ate an ana­logue of the For­eign Intel­li­gence Sur­veil­lance Court to review the con­duct of such strikes,” Fein­stein said in her open­ing remarks. But is such a court real­ly the best way of ensur­ing account­abil­i­ty? It might not be.

 

The New York Times reports the Oba­ma admin­is­tra­tion has already beendebat­ing the mer­its of such a court inter­nal­ly, but can’t arrive at a con­sen­sus view. An offi­cial is quot­ed as say­ing, “There are a lot of com­plex­i­ties. You’d need leg­is­la­tion and prob­a­bly a new judi­cial body.”

The intri­ca­cies of cre­at­ing a court like this should not be down­played. For one, the ques­tion of pre­cise­ly where in the deci­sion-mak­ing process it would sit looms heavy. Would such a court vet the intel­li­gence used to add names to the “dis­po­si­tion matrix” that gov­erns how names are added to the kill/capture list? Would it review the use of those names in the “play­book,” which cur­rent­ly does not include C.I.A. oper­a­tions?

These are impor­tant ques­tions. Insert­ing any judi­cial process into intel­li­gence analy­sis could upend the sys­tem-poten­tial­ly becom­ing dys­func­tion­al or par­a­lyzed. Addi­tion­al­ly, a judi­cial process with­in mil­i­tary deci­sion-mak­ing could ruin mil­i­tary effec­tive­ness (a court does not review every Con­cept of Oper­a­tions, or CONOP, that a mil­i­tary com­man­der draws up).

The sep­a­ra­tion of pow­ers dic­tat­ed by the Con­sti­tu­tion is anoth­er large stum­bling block. The leg­isla­tive branch has the author­i­ty to declare war and the exec­u­tive branch the author­i­ty to wage war; judi­cial review focused on how war is waged by the exec­u­tive branch would pose innu­mer­able prob­lems.

The only fea­si­ble effec­tive­ness of this court would be for its review of strike already struck, there­fore judg­ing their mer­its lat­ter­ly. As Amer­i­can Uni­ver­si­ty law pro­fes­sor Steve Vladeck explained in a recent post onLaw­fare, a work­able sys­tem for review­ing poten­tial strikes is legal­ly and prac­ti­cal­ly impos­si­ble.

Judg­ing strikes after the fact, like a tri­bunal, pos­es seri­ous prob­lems, as well. Because the government’s case for tar­get­ed killings is based on an immi­nent threat, the court would poten­tial­ly be pre­dis­posed to side with the gov­ern­ment. Vladeck says such a sys­tem “would be akin to ask­ing law enforce­ment offi­cers to obtain judi­cial review before they use lethal force in defense of them­selves or third per­sons.”

If cre­at­ing a court to review poten­tial strikes before­hand doesn’t make prac­ti­cal sense, and hav­ing one review them after the fact pos­es legal pro­grams, what options are there to impose account­abil­i­ty on the drones pro­gram?

Vladeck sug­gests a court that can review dis­put­ed strikes and assign some kind of nom­i­nal dam­age to indi­vid­u­als who have been improp­er­ly tar­get­ed. This has some mer­it;  it would reduce the dan­ger of the court sid­ing with the gov­ern­ment as a mat­ter of course and would avoid any trou­ble­some med­dling with Exec­u­tive Author­i­ty. It would also pro­vide a mech­a­nism by which aggriev­ed inno­cent vic­tims of drone strikes could seek redress from the gov­ern­ment – some­thing long over­due in the debate over drones.

On the oth­er hand, maybe a court is just a bad idea in gen­er­al. Last year inFor­eign Affairs, Omar S. Bashir sug­gest­ed an alter­na­tive: an inde­pen­dent review­er, man­dat­ed by Con­gress and appoint­ed by the Pres­i­dent but grant­ed total inde­pen­dence to review strikes and issue judg­ments. This idea, he argued, “is palat­able to gov­ern­ments because it enables account­abil­i­ty with­out nec­es­sar­i­ly increas­ing trans­paren­cy” (a pri­ma­ry con­cern for the intel­li­gence com­mu­ni­ty, which wish­es to keep its sources and meth­ods clan­des­tine).

A Spe­cial Inves­ti­ga­tor Gen­er­al for Drone Strikes is appeal­ing on a num­ber of lev­els.  Mr. Bashirm, how­ev­er, is per­haps too eager to dis­count the like­li­hood such an exec­u­tive agent would become politi­cized and self-mar­gin­al­ized. It is too easy to imag­ine a Ken­neth Star-like cir­cus around par­tic­u­lar­ly con­tro­ver­sial drone strikes.

Still, the idea of a new struc­ture to man­age account­abil­i­ty is the most appeal­ing. From what the pub­lic has seen, the government’s legal jus­ti­fi­ca­tions for tar­get­ed killings — includ­ing the assump­tion that they will con­tin­ue indef­i­nite­ly — is cer­tain­ly unique. Maybe that war­rants some new struc­ture for hold­ing the pro­gram account­able: an inde­pen­dent inves­ti­ga­tor or a new type of court.

Of course, all the ques­tions sur­round­ing the account­abil­i­ty of drone strikes rest on the assump­tion the pro­gram will be declas­si­fied to a degree suf­fi­cient for out­side review. Unfor­tu­nate­ly, drone strikes have arisen out of an intel­li­gence com­mu­ni­ty that is unbal­anced and strug­gling to cope with the com­plex chal­lenges of the world today. Maybe by reform­ing that com­mu­ni­ty first, the answer of how to hold it account­able will become more clear.

This was orig­i­nal­ly pub­lished at PBS.org.

joshua.foust
Joshua Foust used to be a foreign policy maven. Now he helps organizations communicate strategically and build audiences.

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