Harman: Drone courts can work
February 19th, 2013
12:01 AM ET

Harman: Drone courts can work

Editors Note: Jane Harman is director, president and chief executive officer of the Woodrow Wilson International Center for Scholars. She was a nine-term congresswoman from California, the ranking Democrat on the House Intelligence Committee from 2002 to 2006, and a principal coauthor of the Intelligence Reform Law of 2004 and the FISA Amendments of 2008.

By Jane Harman, Special to CNN

In the debate on drone policy that is raging in Washington, a simple solution is available. Why not use the framework established in the 35-year-old Foreign Intelligence Surveillance Act, or FISA, to cover drone strikes and offensive cyberoperations?

FISA was enacted in response to the abuses of the Nixon years and established a special court and congressional oversight procedures to review intelligence collection activities against Americans and foreigners. For 23 years, that framework worked well in a very different threat environment. The FISA court was able to manage a reasonable caseload, and the Senate and House intelligence committees – created to do oversight over the program – carefully reviewed all activities.

Drone court considered

September 11, 2001, was a game changer, forcing the United States to rethink the existing security paradigms. In response to the graveness of the terrorist threat, the Bush administration decided that the existing FISA framework was antiquated and inadequate, and began warrantless foreign intelligence surveillance outside the FISA structure. The president claimed this extra-legal action was justified under his "commander in chief" powers in Article II of the Constitution.

Michael Hayden: Avoid easy decisions on drones and cyber war

Congress rightly pushed back. As one of the members of Congress who led the charge, I insisted that the program be brought under FISA and helped write amendments in 2008 to modernize it.

These amendments - which then-Sen. Barack Obama supported, and which were passed by an overwhelming bipartisan vote and renewed twice – created the legal structure that could serve as a model for overseeing drone strikes and offensive cyberattacks. A FISA-like process for governing so-called "remote-control warfare" would protect individual liberties enshrined in the Constitution while confronting a supercharged threat environment.

FISA-like procedures can help with critical determinations of how imminent a threat is, whether capture is feasible and if potential action is consistent with laws of war, the three criteria laid out in the recently leaked Department of Justice's "white paper" on drone strikes.

Robert Gates: Drone program could use more oversight

The FISA court, renamed the CT Court, could also oversee drones and cyber. A FISA court application must show that specific individuals are connected to a foreign power – which is defined, in part, as a group engaged in international terrorism. Drone and cyber applications could (1) list the individual/cyber target against whom the lethal operation is directed and (2) submit a finding of probable cause that the individual/cyber target is connected to a foreign power, is in a senior operational capacity and poses an imminent threat of violent attack against the United States.

Approved applications for drone strikes and cyberattacks would need to be renewed after a certain period, and discontinued if evidence is presented that the targets no longer meet the criteria. FISA provisions for emergency authorization in time-sensitive situations should also apply.

The concern about avoiding collateral damage in drone strikes is echoed in the FISA requirement to minimize exposure of U.S. persons and private information that may be incidentally acquired in the course of a foreign intelligence operation.

FISA also explicitly provides for congressional oversight by mandating that the intelligence and judiciary committees be kept fully informed. As an independent branch of government, Congress must conduct robust oversight.

In addition to adopting a FISA-like framework, one more major change should be made: All sustained drone and cyberattacks should be conducted by Department of Defense agencies. The CIA could then return to its more traditional missions, something CIA director nominee John Brennan has said he supports.

Vice President Biden likes to say that "our own strength lies not in the example of our power, but the power of our example." Showing the world that we run "remote-control warfare" consistent with our values will vastly improve our standing in the world – and our ability to win the argument with those who are considering whether to attack the United States. We can have liberty and security, or we can diminish both.


Filed under: Cybersecurity • Intelligence • Opinion
soundoff (29 Responses)
  1. franklovesfl

    What do you think that Churchill or Patton would think about having to go to court to approve a military target?

    February 20, 2013 at 2:11 pm | Reply
    • federalreserve

      niether churchill nor patton would believe 2 airplanes could knock down 3 buildings..... both knew what a disaster jews are too.

      February 20, 2013 at 3:07 pm | Reply
  2. George Patton

    Let it Drone! Let It Drone! Let It Drone!

    February 19, 2013 at 6:51 pm | Reply
    • George Patton-2

      Just ignore the above, It was made by some mindless Tea Partier who never got past the 5th grade in school!!!

      February 20, 2013 at 1:48 pm | Reply
  3. Marine5484

    Who does this broad Jane Harman think she is anyway, defending the use of those ungodly drones, hurling 500 lb. bombs on defenseless people overseas? I bet that she'd feel quite different if her own family members were to be on the receiving end of these monsters!

    February 19, 2013 at 4:54 pm | Reply
    • federalreserve

      she/ IT is a zionist jew, and actually has no business in the USA

      February 20, 2013 at 3:22 am | Reply
    • sigh

      Disgrace to the United States Marine Core^.

      February 20, 2013 at 3:35 am | Reply
    • George Patton-2

      Beautifully said, Marine5484. Thank you for that statement above.

      February 20, 2013 at 1:46 pm | Reply
    • Ord_Miller

      Marine Corps Enlisted Job Descriptions
      MOS 7314 - Unmanned Aerial Vehicle (UAV) Air Vehicle Operator
      Rank Range: MGySgt to Pvt

      Job Description: External UAV operators execute the initial takeoff and final landing phases of UAV operations. They are also an integral part of all mission planning, takeoff and landing sequences, and crew coordination aspects of UAV flight.

      IMarine, really?

      February 20, 2013 at 6:38 pm | Reply
      • federalreserve

        the ONLY thing needing Execution is the drone operators... what new brand of chickenfried cowardice is this?

        February 20, 2013 at 7:07 pm |
    • Ted Diamond

      Maybe a good idea would be to send a note to the bad guy and kindly ask him to please get the women and children 1000 feet away from the house. We will do a fly over and if all is clear blink a light twice. Then, and only then will we release a bomb. And, only if we get the go ahead. Hey, I bet I could get on Ms Harman's staff! (Hmmm....I wonder if we can trust the bad guy to do that?) Of course, we can sue him if he doesn't!!

      February 21, 2013 at 8:18 pm | Reply
      • federalreserve

        what part of the bad guy is jew ish don't you get?
        you americlowns have YET to retaliate against the correct people for 9/11.
        911missinglinks.com

        February 21, 2013 at 8:55 pm |
    • blackbird10a

      Marine5484 Your statement is simply incorrect. Think about this, a drone being a computer is highly more accurate in aiming its weapons to avoid civilian casualties than any human pilot could ever be. Also, since the integration of drones into the military in 2004 no drone has ever malfunctioned ever. As well, that bomb you are referring to does the same damage no matter what fires it. Those drones save the lives of many soldiers and anyone with family in the military will understand that putting a soldier in harms way is never the correct solution. The drones should be encouraged and implemented wherever possible to save the lives of the soldiers. America needs to protect itself from the real monsters the terrorists of Al Queda and should do it with as little risk to soldiers as possible. Thank You

      February 28, 2013 at 7:32 pm | Reply
      • federalreserve

        silly lil blackbird still pretending 2 airplanes could actually knock down 3 buildings???

        I hope for a chinese invasion, so I can HANG you & your unamerican ilk.

        February 28, 2013 at 7:49 pm |
  4. massoud

    Venezuela"s Hugo Chavez is a Libertarian in comparison to Barrack Obama

    February 19, 2013 at 3:45 pm | Reply
  5. mew mew kitty

    Drone court, lol, call it what it is, murder court, where people are sentenced to death without a proper trial.

    If America is no longer America, it really makes one wonder why they should show loyalty to the new non-America.

    February 19, 2013 at 1:54 pm | Reply
    • Joseph McCarthy

      The main problem with America mew mew kitty, is that it is no longer being run by people with moral principles or scruples. In America, a sense of right and wrong among our leaders went the way of Gothic German, that is, out of use!

      February 19, 2013 at 2:06 pm | Reply
      • federalreserve

        the REAL problem with the former uSA is it is run by jews who rely heavily on a sense of PC gone stupid.... the doco 911missinglinks dotcom expalins it all by fired FBI agents.

        uSA is jewscewred, bad.

        February 20, 2013 at 10:33 am |
  6. Jonathan

    By starting with the observation that Ms. Harman's Congressional district is in a politically conservative area which stands to capture some of this drone business, you can immediately discount anything she has to say on the matter as a self-interested sales pitch and therefore the opposite of what we as a nation should be doing.

    February 19, 2013 at 1:23 pm | Reply
    • Marine5484

      Well put, Jonathan. Thank you.

      February 19, 2013 at 4:51 pm | Reply
  7. massoud

    The former Soviet Union and the former East Germany would be proud of our Drone Courts

    February 19, 2013 at 12:05 pm | Reply
  8. Kevin

    There is a typo in the abstract of this story beneath the headline on the Politics homepage.

    February 19, 2013 at 10:31 am | Reply

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