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February 9, 2013

Lawmakers test legal waters for regulating drones

WASHINGTON — Lawmakers are considering whether Congress should set up a special court to decide when drones can kill American al-Qaida suspects overseas, much as a secret court now grants permission for surveillance. The effort, after CIA Director-designate John Brennan’s vigorous defense of a drone attack that killed U.S. citizens, reflects a philosophical struggle in government over remote warfare.

The chairman of the Senate Intelligence Committee, Dianne Feinstein of California, spelled it out at the start of Brennan’s confirmation hearing on Thursday. She declared that she intended to review proposals for “legislation to ensure that drone strikes are carried out in a manner consistent with our values and the proposal to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes.“

And Sen. Angus King Jr., in a letter Friday to senior leaders of the panel, suggested an “independent process - similar to the Foreign Intelligence Surveillance Court - to provide an appropriate check on the executive branch’s procedure for determining whether using lethal force in a foreign country against a U.S. citizen would be lawful.”

In FISA proceedings, 11 federal judges review wiretap applications that enable the FBI and other agencies to gather evidence to build cases. Suspects have no lawyers present, as they would in other U.S. courts, and the proceedings are secret. The government presents its case to a judge, who issues a warrant or not.

The notion of something similar for drone strikes drew immediate criticism from human rights and legal groups, which contend that such a court must allow the accused to mount a defense.

“It’s not about evidence gathering, it’s about punishment to the point of execution,” said Mary Ellen O’Connell, professor of international law at the University of Notre Dame and a critic of the government’s drone program. “We have never thought people could be executed without some kind of trial.”

A former CIA official reacted coolly, too, but from the opposite direction.

“I think it is reasonable to ask the question under what circumstances the president can use lethal force against a U.S. citizen overseas,” said Jeff Smith, former general counsel of the CIA. “It’s a frightening power, and I think we need to think very, very carefully about how that power is used and whether some judicial review is warranted.”

“But I certainly don’t think judicial review or congressional review is needed to strike al-Qaida or other terrorists organizations,” he said.

The idea is also so preliminary that lawmakers can’t yet say exactly how a new process would work. In fact, most of those interviewed said the current system run by the White House works well.

Brennan pioneered the current process to determine which targets are dangerous enough to be placed on one of two hit lists for killing or capture — one held by the CIA and the other by the military’s Joint Special Operations Command. Many of the names on the lists overlap, and the agency that goes after the target depends on where the suspect appears. That process was described in a legal memo made public this week, and the White House shared classified details with select lawmakers.

The new notion is drawing  concern from some in Congress who fear special courts would slow down the drone strikes — considered by some, including Brennan, as one of the most effective weapons in the war against al-Qaida.

But many lawmakers say an update is needed in the law, passed in 2001 after the Sept. 11 attacks, that gives the president sweeping powers to pursue al-Qaida. They say that al-Qaida has grown far beyond the war zones and technology has improved, too, enabling a Predator drone operator in the United States to track and kill a target thousands of miles away with great accuracy.

Drone strikes have expanded dramatically in the Obama administration. Fewer than 50 took place during the Bush administration, while more than 360 strikes have been launched under Obama, according to the website The Long War Journal, which tracks the operations. The strikes have been credited with killing more than 70 senior al-Qaida and Taliban commanders in Pakistan alone since they began in 2004.

In Thursday’s hearing, Brennan defended strikes as necessary, saying they are taken only as a “last resort,” but he said he had no qualms about the strike that killed U.S. born cleric Anwar al-Awlaki, because of his roles in several terror attacks.

“The decisions that are made are to take action so that we prevent a future action, so we protect American lives,” Brennan said. “That is an inherently executive branch function to determine, and the commander in chief ... has the responsibility to protect the welfare, wellbeing of American citizens.

Still, he said the White House, too, had considered the concept of the special courts, and he said he would be open to discussing it because “American citizens by definition are due much greater due process than anybody else by dint of their citizenship.”

The White House did not offer further comment Friday, and the CIA declined to comment.

Brennan said people are never killed by CIA or military strikes if there is a way to capture them.

Feinstein said at Thursday’s hearing that she believed the CIA was open with lawmakers about its part of the program.

“We have provided a lot of oversight over the Predator,” she said. “There’s a staff team goes out regularly that is at Langley that does look at the intelligence on a regular basis,” making more than 30 visits to review strikes and the intelligence leading up to them.

But she said she and senators including Democrats Dick Durbin of Illinois and Pat Leahy of Vermont and Republican Chuck Grassley of Iowa are all looking at the concept of how to regulate the strikes.

On Friday, Republicans were circumspect, with prominent members such as House Intelligence Committee Chairman Mike Rogers of Michigan declining to comment, or reserving judgment until they can see more details.

“I don’t know that we can take that exact model and apply it to every tough policy decision that confronts the federal government,” said Mac Thornberry of Texas, a member of the House committee. “If someone is shooting at you, you can’t go to a court and ask them to shoot back,” he said.

Many Democrats were more comfortable with the notion.

“A layer of judicial review could ensure additional checks on the designation of targeted individuals and determine whether sufficient evidence has been produced,” said Sen. Mark Udall, D-Colo.

Said Rep. Adam Schiff, D-Calif.: “I don’t have in mind to redefine the circumstances in the memo” describing the legal rationale behind the strikes “but rather set up a process for prospective or retrospective analysis of how drone strikes are made,”

The White House allowed lawmakers on the Senate and House intelligence committees to see the classified advice to the president describing the legal rationale behind drone strikes ahead of the Brennan confirmation hearing — a pre-emptive effort meant to answer increasing questions from lawmakers about the program, and also to head off threatened holds on the Brennan nomination.

But that release has produced further demands for access and information. The intelligence committee members want their staff to read the documents, and the congressional Judiciary committees are also demanding access.

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