By Pam Benson
Should federal judges weigh in on a president's decision to pursue and kill terrorists overseas?
The suggestion, raised at this week's nomination hearing of John Brennan to be CIA director, goes to the heart of the debate on whether President Barack Obama or any U.S. leader should have unfettered power to order the targeted killing of Americans overseas who are al Qaeda terrorists.
Some Democratic senators argued there should be a check on the president's authority to use lethal force, particularly against Americans, as occurred in September 2011 when a CIA-operated armed drone killed American-born cleric Anwar al-Awlaki in Yemen.
Al- Awlaki was a senior operational planner for al Qaeda in the Arabian Peninsula who had been linked to a number of terrorist plots against the United States.
One solution offered at the hearing was to create a new court to oversee such presidential decisions.
Senate Intelligence Committee Chair Dianne Feinstein, D-California, said she would review ideas for legislation "to ensure that drone strikes are carried out in a manner consistent with our values," including a proposal to create "an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes."
The Foreign Intelligence Surveillance Court (FISC) is a top-secret body that reviews federal warrants to intercept electronic communications of suspected foreign agents and terrorists. One reason is to protect Americans from improperly or inadvertently having their communications collected.
Creating a similar type of court to oversee lethal actions taken overseas may be easier said than done.
The intelligence panel has yet to begin drafting legislation, a Feinstein aide told Security Clearance. For now, the panel was reading through proposals and suggestions by experts and commentators.
According to the aide, who spoke on condition of not being identified, writing a bill raised "a lot of questions to wrestle with." Consultations with the Judiciary and Armed Services Committees as well as the White House must occur before a final proposal can be developed, the aide added.
Ben Powell, the former general counsel for the Director of National Intelligence, said legislators will have to deal with "a number of thorny legal issues ... with very complex implications" to put an FISC-style court together.
According to Powell, major questions that must be addressed include specifying what the court would rule on, such as whether the target was part of al Qaeda or posed an imminent threat or was unlikely to be captured.
In addition, legislation would have to define whether the court's rulings would cover U.S. citizens who don't belong to al Qaeda but pose an imminent threat, as well as what role it would have in issues outside the United States, he said.
Powell also said legislators would have to clarify how the new court interacted with the president's constitutional power to defend the nation, specifically whether a new law would seek to limit such power.
Some legal experts believe the court's review would be limited to determining whether an individual should be put on a target list.
University of Texas law professor Robert Chesney wrote on Lawfare Blog that the question should be "whether there ought to be judicial review of some kind in connection with the nomination process pursuant to which particular person may be pre-cleared for the possibility of using lethal force, a decision made long in advance of an actual attack decision."
However, Chesney raised the issue of whether such a system would be constitutional, especially if it went beyond just considering American citizens.
Powell questioned whether any court would even accept the role, saying "it would immerse the court deeper and deeper into national security judgments."
At a recent American Bar Association panel discussion, retired federal Judge James Robertson said he would want no part of such a role.
"That's not the business of judges to decide without any adversary party to sign a death warrant for somebody who is on foreign soil, for anybody, but certainly not for an American citizen on foreign soil," Robertson said.
Chesney said proponents of the court should think twice if they expect judges will ever rule against a government decision to target a particular person.
"Judges famously tend to defer to the executive branch when it comes to factual judgments on matters of military or national security significance," Chesney said. "Especially when the stakes are as high as they will be represented to be in such cases."
At Brennan's confirmation hearing, Sen. Angus King, an independent from Maine, argued for establishing a new court, saying the president should not be the "prosecutor, the judge, the jury and the executioner."
Brennan told King such a court was "worthy of discussion," but added: "The commander in chief and the chief executive has the responsibility to protect the welfare, the well being of American citizens" from terrorist attacks.