Should the United States have courts that authorize the targeted killing of Americans? At yesterday’s hearing, Sen. Angus King (I-ME) suggested so yesterday, worrying that the President being “the prosecutor, judge, jury and executioner is very contrary to laws and traditions of this country.” A court that would approve warrants to kill Americans, King argued, “would be some check on the activities of the executive.” CIA Director Nominee John Brennan said King’s idea was “certainly worthy of discussion,” and Senate Intelligence Committee Chair Dianne Feinstein (D-CA) suggested she and other lawmakers “may explore setting up a special court system to regulate strikes.” New York Times columnist David Brooks made a similar suggestion in his column today, arguing for an “independent judicial panel to review the kill lists.”

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.

Rep. Michele Bachmann (R-MN) will remain a member of the House Permanent Select Committee on Intelligence during the 113th Congress — despite leading a widely discredited anti-Muslim witch hunt against government personnel last year.

According to the committee list released Friday, Bachmann will stay on the powerful committee despite calls from People for the American Way and others for Speaker of the House John Boehner (R-OH) to remove her. Instead, Boehner in his statement making the announcement praised the lawmakers “charged sacred task of supporting that mission by ensuring the intelligence community has the resources and tools it needs to stay ahead of the evolving threats we face, and by conducting effective oversight of the administration.”

Dismay towards Bachmann’s continuing presence on the committee stems from her use of that position to lead a witch-hunt against then-Secretary of State Hillary Clinton’s top aide Huma Abedin and other U.S. government personnel. In the letter sent to the State Department, Bachmann suggested that Abedin and others were allied with the Muslim Brotherhood, seeking to infiltrate the U.S. government and affect policy decisions. The charges were clearly false, based mostly on the conspiracy theories of noted Islamophobe Frank Gaffney.

Bachmann’s actions split the Republican Party, with several prominent members — including former Speaker Newt Gingrich and former U.S. Ambassador to the U.N. John Bolton — signing onto her conspiracies. Many other Republicans — including Boehner himself — abandoned Bachmann to her quixotic pursuit of imaginary infiltration. Sen. John McCain (R-AZ), then-Sen. Scott Brown (R-MA) and others joined President Obama and Clinton in condemning Bachmann’s scare tactics.

Joining Bachmann in being renamed to the committee are Rep. Lynn Westmoreland (R-GA) and Rep. Tom Rooney (R-FL), who signed onto the original letter sent to State about Abedin. The clearly Islamophobic stances of these committee members makes their position on the committee, with its oversight of the National Security Agency and CIA’s activities, particularly troubling.

Bachmann in particular clearly learned nothing from her experience smearing Abedin. Not only did she stand by the content of her letter to State, as recently as December, but she also compared a letter from a Muslim advocacy group to Adolf Hitler’s Mein Kampf. (HT: Faiz Shakir)

Senate Armed Services Committee chairman Carl Levin (D-MI) told ranking member Sen. James Inhofe (R-OK) in a letter on Friday that the demands he and his GOP colleagues have made in asking for more information from Chuck Hagel before his confirmation vote to be the next Pentagon chief “far exceed” the standard that previous nominees have had to meet.

Twenty-five Senate Republicans sent Hagel a letter on Tuesday saying they opposed a vote on his confirmation unless Hagel disclosed numerous pieces of financial information, many of which the former Republican senator has previously said he is not legally obliged to give.

Levin said on Thursday the demands were unprecedented and went “way beyond what the rules of the committee are.” Levin backed up his comments in the letter to Inhofe today:

This letter appears to insist upon financial disclosure requirements that far exceed the standard practices of the Armed Services Committee and go far beyond the financial disclosure required of previous Secretaries of Defense. [...]

There are two unprecedented elements to the financial disclosure demanded by the February 6, letter: (1) the disclosure of “all compensation over $5,000 that [Senator Hagel has] received over the past five years”; and (2) the disclosure of any foreign funding of eight private entities from which Senator Hagel has received compensation since leaving the Senate (including the date, source, and specific amount of each foreign contribution). Each of these demands goes well beyond what the committee has required of any previous nominee. [...]

The committee cannot have two different sets of financial disclosure standards for nominees, one for Senator Hagel and one for other nominees.

Experts agree with Levin. “I think it’s a pretty ridiculous and outrageous thing to ask,” Norman Ornstein of the conservative American Enterprise Institute told the Daily Beast this week. “You could say that there’s been requests for detailed information [in the past], but this goes even beyond the intrusive questionnaires candidates fill out during the vetting process.”

Levin postponed the committee’s vote on Hagel’s nomination this week due to the GOP obstruction but a statement accompanying the letter to Inhofe said “Levin intends to hold a committee vote on the Hagel nomination as soon as possible.”

Momentum is growing among lawmakers to form some sort of new oversight panel or court to weigh in on targeted killings carried out by the Obama administration.

Yesterday’s Senate hearings on the confirmation of John Brennan as CIA Director brought several questions from Senators related to the program, started under the Bush administration, but expanded over the last four years, involving the targeted killings of suspected militants associated with Al Qaeda. Concern has grown over the past several days, following the leak of a Department of Justice white paper laying out the legal justification for the killing of American terrorists abroad.

Sen. Angus King (I-ME) during the proceedings raised the idea of sending cases where Americans have been accused of collusion with Al Qaeda to a special court of some sort. Such a court, one of several possibilities to rein in the program this blog suggested this week, could potentially be based around the Foreign Intelligence Surveillance Act (FISA) courts that approve the wiretapping of individuals suspect of being foreign agents:

KING: A soldier on a battlefield doesn’t have time to go to court. But if you’re planning a strike over a matter of days, weeks, or months, there is an opportunity to at least go to some outside of the Executive Branch body — like the FISA court — in a confidential and top secret way. Make the case that this American citizen is an enemy combatant. At least that would be some check on the activities of the executive.

Brennan said that the concept was “certainly worthy of discussion,” without elaborating on whether he was for or against the idea. Intelligence Committee chair Diane Feinstein (D-CA) after the hearings seemed to be supprotive of the the idea put forward by King, saying that she and other lawmakers “may explore setting up a special court system to regulate strikes.” Such a system, however, could prove to be as susceptible to abuse as the FISA courts currently are.

Commentators on both sides of the political spectrum have spent the week expressing their concern about the extensive nature of the program and the lack of investigation into whether the strategy behind it is working. While the House and Senate Intelligence Committees currently monitor the CIA’s drone program activities in Somalia, Pakistan and other locations, they are bound by secrecy rules to keep those reports under wraps. Some lawmakers have pressed the administration for more declassification of the information surrounding drone strikes and other methods of targeting, opening up what is already a widely reported on occurrence.

Sean Hannity is still insisting that waterboarding isn’t torture, just days after ThinkProgress confronted him about his 2009 pledge to be waterboarded for charity, a promise the Fox News host has yet to follow through with.

When ThinkProgress’s Scott Keyes asked about the 2009 pledge on his radio show last week, Hannity got a little agitated. “Here I am bringing you on the program and give you an opportunity to give your pretty radical left-wing point of view, that’s kind of the way you treat me,” Hannity said, later calling Keyes on the telephone to complain about the question.

But Hannity isn’t backing down, at least from his contention that waterboarding isn’t torture. The issue came up during an interview on Thursday with Sen. Lindsey Graham (R-SC):

HANNITY: Last question, you’re against enhanced interrogation and you and I had a disagreement on that.

GRAHAM: I’m against torture.

HANNITY: I don’t believe the three people water-boarded were torture, not to digress.

GRAHAM: OK.

Watch the clip:

There’s bipartisan consensus that waterboarding is torture. A large majority of Americans think it’s torture. The U.S. military has no use for waterboarding and the practice is illegal under international law.

But if Hannity continues to insist waterboarding isn’t torture, why won’t he follow through on his pledge to be waterboarded for charity?