President Barack Obama’s drone war is in danger of becoming an Abu Ghraib-style public-relations nightmare, drawing criticism at home from left and right (and, it seems, even many U.S. troops), spurring angry protests in Pakistan and Yemen, and becoming a recruiting tool for al-Qaeda.
Hence the interest in putting the program under some sort of judicial scrutiny. Unfortunately, as good as that idea sounds, it runs into insurmountable practical and constitutional hurdles.
As loosely proposed by Senator Angus King of Maine at John Brennan’s confirmation hearings to lead the Central Intelligence Agency, the U.S. could create a system similar to that involving the Foreign Intelligence Surveillance Act, under which a secret court hears government warrant requests for electronic surveillance of suspected foreign intelligence agents in the U.S.
Given the ticking-time-bomb nature of drone strikes, seeking judicial approval for an individual strike is impractical. More likely, a judge would have to sign off on adding an individual to the administration’s “kill list” of targets. To get approval, the administration would be obligated to make a case that the person is an imminent threat and that capture wouldn’t be possible. (It’s unclear whether the protocol would apply to all targeted people or just to U.S. citizens such as Anwar al-Awlaki.)