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How A 'Drone Court' Might Work


This is WEEKEND EDITION from NPR News. I'm Rachel Martin. The drone attacks carried out under the Obama administration have for years been one of the biggest open secrets in Washington. It was only last year that the president's then-counterterrorism chief, John Brennan, acknowledge the program publicly for the first time. In recent months, there have been calls from both Democrats and Republicans to make the program more transparent. One suggestion floating around Capitol Hill is the idea of something called a drone court, which would examine the legality of a drone attack. Gregory McNeal has been writing about accountability and oversight of the drone program for Lawfare. It's a blog covering national security law. He also teaches that same subject at Pepperdine University's School of Law. We asked him to explain the different ways a court like this could work.

GREGORY MCNEAL: A drone strike happens against an individual. It turns out, based on journalist reports, whatever, that it was wrong or a family member says, you know, this person was not involved in terrorism at all. You've taken his life, you've destroyed our property - that could be part of the suit as well - you owe us some compensation for what you've done. This one is the least controversial in my mind because it's the type of thing that courts are able to do; review facts after the fact and it's not second-guessing the judgment of the commander in chief, at least it's not second-guessing it before a strike happens.

MARTIN: So, let's walk through another option that you outline. It would be a court modeled after what are called FISA courts. These are the courts formed out of the Foreign Intelligence Surveillance Act, essentially a secret group of judges who can hear very highly classified cases and decide, for example, whether or not the government can open a wiretap or otherwise monitor a person of interest.

MCNEAL: This category of before-the-fact review, I think, is much more difficult. First, it's problematic because a court doesn't have competence in this, which is sometimes OK because a court can call forth experts. But what experts exist in commander in chief targeting? People in the military and people in the intelligence community. And so you'd have a court that I think oftentimes would defer to the experts that the executive branch brought forth. And soon you'll have a situation where if a strike goes bad, the commander in chief could say, well, hey, the court signed off on it. It's not my fault. And if a strike doesn't occur, the court denied the strike against that person and then they end up doing the second Christmas Day bombing plot but they actually succeed, the president can wipe his hands of it and say, hey, look, not my fault, we tried and the court said no.

MARTIN: I do want to ask you a question from the other side of this. You talked with U.S. government officials and they would say that transparency is not and should not be the goal, that transparency undermines national security interests, that transparency would not be a good thing.

MCNEAL: You can't have 100 percent transparency in matters of national security. I think that's correct. But you could have a lot more transparency than we currently have. For example, if the president were to go out and explain in detail the criteria and the manner in which the U.S. carries out these strikes and how careful the U.S. is, and if Congress were to say we're monitoring to make sure they're actually as careful as they say, and if they were transparent about what their redlines were by communicating that to the people, it also sends a credible signal to the president that, listen, if you violate these redlines, we're going to hold you accountable and you could really trust we will because we've gone public with what our criteria are when we conduct our oversight activities.

MARTIN: So, why doesn't this happen? Is there not an incentive for members of Congress to lay out those redlines and make the deliberation process more transparent?

MCNEAL: So, this is a fascinating question. If you think about it in the most crass political terms, there's not really a constituency for the civilian who was killed in a drone strike where the president alleges that that civilian was accompanying a member of al-Qaida, right? You're not going to go out to Peoria and say and I approve this message; I protected the guy in the front seat with the al-Qaida member. I think the second issue is that by not going on record, you can hold the executive accountable in private but it doesn't force you to consistently do it when it's not politically convenient for you.

MARTIN: So, if you've just outlined that the executive branch doesn't really have an incentive in making this more transparent because it means relinquishing control, Congress doesn't really have an incentive because it's politically untenable, what is likely to happen? What is realistic?

MCNEAL: So, interestingly, the Rand Paul filibuster of John Brennan to leave the CIA, which was largely animated by transparency over the drone program and targeted killings, I think that that was sort of a - there's some polling that indicates that was a triggering moment that changed public attitudes about this. There's been a lot more pressure for congressional oversight, which is one way that we have - or congressional hearings - which is one way that we have better transparency and more pressure on the executive branch. And I think as long as that political pressure stays on Congress to say what are you doing here, we might get a bit more transparency.

MARTIN: Gregory McNeal is a law professor at Pepperdine University's School of Law. Gregory, thanks so much for talking with us.

MCNEAL: Thanks for having me. Transcript provided by NPR, Copyright NPR.

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