Editor’s Note: Amos Guiora is professor of law at the S.J. Quinney College of Law, the University of Utah. The views expressed are his own.
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Amos Guiora: Court oversight would help create a broad drone policy rooted in rule of law
Court should not be seen as limiting state's fundamental right to self-defense, he says
Targeted killings sit at the intersection of law, morality, strategy, and policy. But while they are an important tool for helping states protect innocent civilians, there’s an important caveat – such killings must follow rigorous standards, criteria, and guidelines.
True, the cost of terrorism across the globe is huge and cannot be dismissed. Terrorists do, after all, deliberately target innocent civilians. And after some 20 years sitting at the table of operational counter-terrorism efforts in Israel I believe there is an important place for the judicious use of targeted killings.
However, increasingly broad definitions of imminent threats, combined with new technological capabilities, are drastically altering the legal and moral principles that targeted killings are based on. Indeed, in 2013, the Department of Justice developed a white paper on the Obama administration’s drone policy defining imminence so expansively that there actually need not be clear evidence of a specific, imminent attack to justify the killing of an individual, including U.S. citizens. This extraordinary broadness is to targeted killings what the Bybee “torture memos” were to interrogation excesses under the George W. Bush administration.
It shouldn’t be this way. And it doesn’t need to be.
If the U.S. government wants to ensure broad trust in targeted killings, then it should work to establish a standard of scrutiny that meets the kind of standards that would be expected to be met in a court of law, that could be adjudicated by a non-state actor.
What would these standards look like?
Ultimately, the intelligence would have to be reliable, material, and able to prove the need for action. And while such requirements would have to be balanced against the need for the state to engage in operational counter-terrorism and strike quickly, there would need to be significant restrictions on when targeted killings would be deemed justified, including narrow definitions of an imminent threat and legitimate target. Adopting admissibility standards akin to criminal law would simply be an additional way of avoiding operational error – and tragedy.
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In practice, this would mean that rather than relying on the executive branch making decisions in a “closed world,” a place devoid of oversight and review, the intelligence information justifying any proposed action would be submitted to a “drone court” that would ascertain the information’s admissibility. The simple process of preparing and submitting available intelligence information to a court would undoubtedly make a significant contribution to efforts at minimizing mistakes.
Implementing such a system is actually less daunting than it might seem, because the type of court before which the executive would submit its evidence already exists – in the form of the Foreign Intelligence Surveillance Act court. Right now, FISA court judges weigh the reliability of intelligence information when determining whether to grant government requests for wire-tapping warrants.
Under the “drone court” proposal, judicial approval would be necessary prior to undertaking a counterterrorism operation based solely on intelligence information. Unlike the FISA court, though, the intended target would also be represented. The standard the court would adopt in determining the reliability of the information would be the same applied in traditional criminal law, and the court would be able to cross-examine the representative of the executive branch and rule on the information’s admissibility.
Of course, some believe that the FISA Court is largely an exercise in “rubber-stamping.” But the point of this new approach would not just about the decision itself, but that it would require the government to go on record as it presents the available information to an independent judiciary before being allowed to engage in operational counterterrorism. And while an exception could be made to the regular process if the administration believed there was a truly imminent threat that justified a quick strike, it would be required to come to court retroactively, show its intelligence, and be prepared for the court to note the evidence presented is unsatisfactory as appropriate.
Such a system would undoubtedly and explicitly alter the nature of the relationship between the executive and the judicial branches of the government. But in doing so it would help minimize collateral damage in drone attacks by clarifying and narrowing the definitions of legitimate target. And it should also by no means be seen as limiting a state’s fundamental right to self-defense. Rather, this kind of accountability would ensure objective standards for determining the reliability of intelligence information that is provides the backbone of targeted killing decision-making.
None of this would guarantee the end of tragic accidents. And a drone court would likely not have applied to, much less have prevented, an apparent combat situation like the hospital attack in Afghanistan at the weekend.
But court oversight would help create a broad drone policy rooted in the rule of law and also morality – and avoid the pitfalls that the Department of Justice’s troubling White Paper seem destined to create.