The wrong venue for drone re­view

The Washington Post Sunday - - SUNDAY OPINION - BY JAMES ROBERT­SON The writer, a re­tired fed­eral judge, served on the U.S. District Court for the District of Columbia from 1994 to 2010.

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 hard-wired against ren­der­ing “ad­vi­sory opin­ions” since 1793, when the first chief jus­tice, John Jay, de­clined to an­swer 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 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.”

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