Privacy SOS

Terror Tuesday: why kill list courts are not the answer

If you were surprised to hear one particular rhetorical flourish in the President’s State of the Union address, imagine how Senator Ron Wyden (D-OR) felt. For well over a year he and a handful of other Senators had been trying to obtain the government’s legal justification for its targeted killing program without getting any response from the Justice Department.

“My administration,” the President said, “has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism efforts. Throughout, we have kept Congress fully informed of our efforts.

“And I recognize that, in our democracy, no one should just take my word for it that we're doing things the right way. So, in the months ahead, I will continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

Since the Intelligence Committees were only given “access” to the legal opinion on the eve of the Brennan hearings and then were told not to share the material with their staffs, it’s difficult to imagine what the President had in mind when he said Congress had “throughout” been kept “fully informed.”

And wouldn’t straight talk be preferable to doublespeak? The President could have gone on to say: “I will begin to engage with Congress to debate whether our targeting, detention and prosecution of terrorists can be brought in line with our laws and system of checks and balances, and to make our efforts more transparent to the American people and to the world.”

But he didn’t and few Members of Congress are likely to mind. Over the years, they have seemed more keen on bulking up the powers of the Commander-in-Chief and enabling the emergence of a national security surveillance state than exercising meaningful checks and balances.

One who does mind is Rep. Barbara Lee (D-CA), the only Member to vote against the blank check given the President by the 2001 Authorization for the Use of Military Force. She recently wrote to the LA Times that “the overly broad and vague legal boundaries used to justify drone strikes should shake the American people to the core” and called for “a full debate of the consequences of the September 2001 action” as a step toward “meaningful oversight by Congress.”

Such a “full debate” is indeed critically needed — and unlikely to happen. Can anyone imagine this Congress producing the equivalent of the Church Committee investigation into what the government’s intelligence agencies have been doing both here at home and on the ‘global battlefield’?

Instead some law makers – Sen. Dianne Feinstein (D-CA), Sen. Angus King (I-ME) and even Sen. Wyden – say they are open to examining whether a secret court can be established as, in Sen. Feinstein’s words, “an analogue of the Foreign Intelligence Surveillance Court” to vet drone strikes. Former CIA head Robert Gates thinks this would be a good idea and President Obama thinks the notion is worth pursuing.

The New York Times has editorialized on behalf of a special secret court whose work would be overseen by Congress:

The establishment of a court would have to be accompanied by clear and public standards for how a suspect can be named an enemy combatant and a detailed explanation of the process now used by the White House. (An opportunity for the president to demonstrate the transparency that he says he supports.)…The court would not be expected to approve individual drone strikes, and the executive branch would still be empowered to take emergency actions to prevent an impending attack.

Hmmm. Not everyone is buying the idea. The ACLU wants to use the existing federal court system to make the Administration accountable. In the words of the ACLU’s Hina Shamsi, “I strongly agree that judicial review is crucial. But judicial review in a new secret court is both unnecessary and un-American.”

In a thoughtful piece in The New Republic its legal affairs editor Jeffrey Rosen maintains that “the proposed drone court would raise as many constitutional and legal questions as it resolved. And it would give a congressional and judicial stamp of approval to a program whose effectiveness, morality, and constitutionality are open to serious questions. Rather than rushing to create a drone court, Congress would do better to hold hearings about whether targeted drone killings are, in fact, morally, constitutionally, and pragmatically defensible in the first place.”

The condition of the two existing special courts set up to deal with national security matters underscores Rosen’s point that a new drone court would be ‘courting disaster.’

The first is the ‘analogue’ invoked by both Sen. Feinstein and the editorial in The New York Times: the secret Foreign Intelligence Surveillance Court (FISC) established by the 1978 Foreign Intelligence Surveillance Act (FISA).

Congress passed FISA in an effort to rein in the pervasive spying on Americans by the NSA, FBI and CIA uncovered by the Church Committee. The purpose of the FISC, which was originally made up of seven (later 11) federal district judges appointed by the Chief Justice of the Supreme Court, was to authorize government wiretaps (and eventually physical searches) in foreign intelligence investigations.

The reasoning behind it was that the FBI and other federal agencies that applied for FISC orders needed to know what foreign spies were doing to keep the nation safe, but would not be hauling them into court. Because they would not be pursuing criminal charges, they were not required to make a Fourth Amendment showing of “probable cause” of criminal activity when submitting their requests for permission to wiretap. They simply had to give evidence that the target was a foreign power or agent of a foreign power.

The ‘bright line’ that was supposed to keep evidence obtained through a FISC order from being used in criminal proceedings was largely erased in the post 9/11 period, as FISC orders were increasingly used against people suspected of having ties with international terrorism.

Over the years 1979 to 2011, the FISC approved some 32,000 applications and rejected only 11, according to this breakdown by the Electronic Privacy Information Center.

If the FISC has served as little more than a rubber stamp for most of its existence, even that role has been diminished since the passage of the FISA Amendments Act of 2008, which permits the government to do warrantless bulk collections of phone calls and emails if it believes that one end of the communication is overseas. The only thing left for FISC judges to do is to review general targeting and minimization procedures for these blanket requests.

And if this results in the mass collection of Americans’ communications? There’s nothing that can be done unless the government uses that information in court. Otherwise a ruling by the Ninth Circuit Court of Appeals has put such warrantless wiretapping beyond legal challenge.

So much for the role of the FISA court in protecting Constitutional rights. If a drone court is set up as an ‘analogue’ to the FISC, we can expect such a body to rubber stamp executive actions behind a wall of secrecy while further undermining constitutional rights and protections. It may provide a fig leaf of judicial review and a sop to the governmental conscience, but nothing more.

How about the court system created specifically to try terrorist suspects, the military commissions at Guantanamo Bay? Here, there are few surprises. What was expected to be dysfunctional is proving to be exactly that.

For the last nine months, challenges to the legality of the proceedings have prevented the trials of the Khalid Sheikh Mohammed and the other alleged 9/11 plotters from moving beyond the pre-trial stage.

Recently, the government’s mania for secrecy has been getting out of hand. On January 31, as the pre-trial hearing ground on, a mysterious outside censor stopped the closed circuit feed of the proceedings as the defense was asking for secret CIA prisons to be preserved as evidence.

That was too much for Army Col. James Pohl, who ordered the government to get rid of the secret monitoring system and declared that only he and the court security officer had the authority to suspend a broadcast.

Defense attorneys then declared that secret government listeners had been eavesdropping on their private conversations with the defendants in the courtroom and detainee compound, where microphones were disguised as smoke detectors. There was more disarray in the courtroom when detainees complained bitterly that confidential legal mail had been confiscated from the bins in their cells.

“Who is the invisible hand? Who is pulling the strings? Who is the master of puppets?” Navy Lt. Commander Walter Ruiz demanded to know.

Answers were not immediately forthcoming, but the CIA was suspected. On February 13, the prison’s top security officer testified that there was indeed monitoring equipment in the cells and special visitation room – but the devices, he said, were not turned on.

So it goes with the parody of due process offered by the military commissions, as the Guantanamo debacle continues.

If President Obama is serious about making its counterterrorism efforts “even more transparent to the American people and to the world,” the answer is not the creation of another secret court that will do nothing to convince the world that the American government has returned to the rule of law. The United States can ill afford another travesty of justice.

© 2021 ACLU of Massachusetts.