The idea that the federal courts should play some role in deciding whether the government may kill U.S. citizens abroad allied with al-Qaida 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-Qaida propagandist Samir Khan, another U.S. citizen. According to the government, the New Mexico-born Awlaki had taken on an “operational” role with al-Qaida in the Arabian Peninsula and posed a threat to Americans.
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.