The idea that the federal courts should play some role in deciding whether the government may kill U.S. citizens abroad allied with Al Qaeda has suddenly gained traction in Washington. During confirmation hearings for John Brennan, President Obama's nominee to head the Central Intelligence Agency, Sen. Dianne Feinstein (D-Calif.), the chair of the Intelligence Committee, said she would be considering legislation to establish a court to "review the conduct" of U.S. drone strikes. Brennan himself, asked by Sen. Angus King (I-Maine) whether a court should scrutinize a decision to target a U.S. citizen for death, said the idea was "certainly worthy of discussion."
Virtually all of the thousands of people killed by drone strikes in Pakistan and Yemen (some of them innocent bystanders) have been foreigners, so they wouldn't benefit from any such legislation. As far as we know, only one U.S. citizen has been deliberately killed by his own government: Anwar Awlaki, who was targeted in a drone attack in Yemen in 2011 that also killed Al Qaeda propagandist Samir Khan, another U.S. citizen. According to the government, the New Mexico-born Awlaki had taken on an "operational" role with Al Qaeda in the Arabian Peninsula and posed a threat to Americans.
Yet while Awlaki is the first American abroad to be assassinated by his own country, he may not be the last. The Obama administration has asserted that it has the right to target and execute Americans far from any battlefield, without charging them with a crime or offering them the opportunity to argue in their own defense. That's a very troubling assertion that raises numerous moral and practical questions. But if the United States is determined to go down that path, safeguards certainly would be helpful. Involving the judiciary in future decisions to kill Americans would at least provide a check — a second opinion of sorts — on the choices of the executive branch.
At the Brennan hearings, Feinstein suggested that Congress could create an "analogue of the Foreign Intelligence Surveillance Court," which rules on wiretaps in national security cases. If a comparable court were set up for targeted killings, there are a few ways it could work. Congress could require the government to provide the court with evidence about specific U.S. citizens and to approve or reject the placement of those individuals on a "kill" list. Alternately, the government might be required simply to seek the court's approval for general policies for the targeting of U.S. citizens.
Either system would mean that someone outside the executive branch would review decisions that could lead to the killing of an American. Though that would not afford the intended target the due process provided by an ordinary court that meets in public and hears from lawyers for both sides, the extra protection would be better than none.
For judicial review of targeted killings to work, judges would have to overcome their traditional impulse to defer to the executive branch on matters involving national security. That would mean, for example, scrutinizing the Obama administration's elastic definition of the sort of "imminent" attack on Americans that would justify the targeted killing of a U.S. citizen. A Justice Department memo leaked to NBC News suggests that knowledge of a specific impending attack might not be required to deem a threat "imminent"; a deadly drone can be dispatched because Al Qaeda leaders are "continually plotting" attacks.
If the new court is created, the judges should apply a more exacting standard, such as the one proposed by Awlaki's family when it unsuccessfully asked a federal judge to remove his name from the kill list: A U.S. citizen outside a war zone couldn't be killed "unless he is found to present a concrete, specific and imminent threat to life or physical safety, and there are no means other than lethal force" to neutralize the threat.
Judicial review isn't a foregone conclusion. Many members of Congress are likely to oppose it, and Obama made no mention of the idea in his State of the Union address. He did, however, promise to work with Congress to ensure that "our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances." Whether the targeted killing of an American, even with judicial review, would meet that test is debatable, but it would be an improvement.