But specialized courts are unlikely to provide effective constraints on the President’s power, and there is a real concern that creating a legal system explicitly designed to authorize targeted killings raises troubling questions for a democratic society.
The United States has some experience with specialized national security courts. King suggested modelling the targeted killing courts on the Foreign Intelligence Surveillance Act (FISA) system, designed to approve warrants for wiretapping foreigners suspected of espionage. But FISA courts don’t appear to present much of a challenge to a power-hungry executive. In 2011, FISA courts approved every request for wiretapping permission — all 1,506 of them. Lest you think this was a fluke, only two out of 1,329 were denied in 2009. Since FISA courts operate in secret, there’s virtually no public accountability.
Targeted killing courts would likely be as permissive as FISA courts. National security law expert Robert Chesney “wouldn’t bet” on such courts “detect[ing] and reject[ing] weak evidentiary arguments for targeting particular persons” because “[j]udges famously tend to defer to the executive branch when it comes to factual judgments on matters of military or national-security significance…[e]specially when the stakes are as high as they will be represented to be in such cases.” There’s not much reason, then, to believe new courts for targeted killing would a bit more adversarial than their FISA equivalents.
This permissiveness could potentially expand the targeted killing power well beyond Congress’ original intent — a point made clear by comparison to the Bush torture regime. David Luban, a lawyer and philosopher at Georgetown University, argued against legally enshrined torture on the ground that the practice would necessarily spread throughout the United States government. Abu Ghraib, for Luban, was a direct consequence of Guantanamo Bay and the Bush legal memos authorizing it: legal torture is never a one-off, containable thing. The more torture is built into the legal system, the more a “torture culture” becomes the norm.
Arguing against Alan Dershowitz, who defended special “torture courts” to authorize it in extreme cases, Luban pointed to the way torture already had shaped the legal system:
Alan Dershowitz has argued that judges, not torturers, should oversee the permission to torture, which in his view must be regulated by warrants. The irony is that Jay S. Bybee, who signed the Justice Department’s highly permissive torture memo, is now a federal judge. Politicians pick judges, and if the politicians accept torture, the judges will as well. Once we create a torture culture, only the naive would suppose that judges will provide a safeguard. Judges do not fight their culture—they reflect it.
The applicability to any new targeted killing courts idea is obvious. Once the targeted killing of Americans becomes an accepted, institutionalized part of the legal system, it could be seen as increasingly legitimate — and hence increasingly more likely to be used in a wider number of cases than we’d want. While there’s no guarantee this would happen, it’s certainly a risk, and one that needs to be considered as the Senate debate on this topic moves forward.