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Federal court: the wrong venue for a drone review

by James Robertson

The Washington Post

In the wake of the recent confirmation hearing on John Brennan’s nomination as CIA director, and the probably related “leak” of a Justice Department white paper on targeted killings, some politicians, pundits and professors have suggested that “kill lists,” drone strikes and targeting protocols be submitted for “independent judicial review” — essentially, that federal judges ought to be assigned the task of monitoring, mediating and approving the killer instincts of our government. This is a very bad idea.

U.S. judges have been hardwired against rendering “advisory opinions” since 1793, when the first chief justice, John Jay, declined to answer President George Washington’s legal questions about the status of a British ship that had been captured by the French and brought to an American port.

To answer the president’s questions, Jay wrote, would violate “the lines of separation drawn by the U.S. Constitution between the three departments of the government.” Jay’s letter referred to Article II, Section 2 of the constitution, which provides that the president “may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices” — a provision, Jay wrote, that “seems to have been purposely as well as expressly united to the executive departments.”

From that letter — itself an advisory opinion — has grown a complex but well-established and understood set of constraints on the federal courts: They are to decide only “cases” or “controversies” that are “justiciable” and “ripe” for decision. Federal courts rule on specific disputes between adversary parties. They do not make or approve policy; that job is reserved to Congress and the executive.

Nor do federal courts act ex parte — hearing one side only — or sit in a Star Chamber, like the co-opted judges of 16th-century England. The targets of a drone strike make no appearance before a judge; they have no notice of the charges against them; no lawyer; no chance to call witnesses or confront the evidence against them; no due process rights. Their case is necessarily considered in absentia and in secret. An American judge cannot do American justice in such a case. If he did, his independence would be severely compromised.

But — say the politicians, pundits and professors — courts routinely rule on government requests for search warrants and, in the national security context, on requests for foreign intelligence surveillance. Why not requests for drone strikes? The answer is simple: A search warrant is not a death warrant.

If the U.S. judiciary is asked to preapprove a targeted killing, its answer should be the answer that John Jay gave to George Washington: “We exceedingly regret every event that may cause embarrassment to your administration; but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.”

James Robertson, a retired federal judge, served on the U.S. District Court for the District of Columbia from 1994 to 2010.