No American prosecutor can imprison or execute someone except on the orders of a judge or jury. That fundamental principle applies no less to the suspected terrorists that the executive branch chooses to kill overseas, particularly in the case of American citizens.
A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones.A special court, which we first proposed in a 2010 editorial, would be an analogue to the Foreign Intelligence Surveillance Court that Congress set up in 1978. If the administration has evidence that a suspect is a terrorist threat to the United States, it would have to present that evidence in secret to a court before the suspect is placed on a kill list.
The FISA court, a model for the future because it has worked out so very well.
The surveillance court is often considered a rubber stamp; out of 32,000 wiretap applications presented by the government from 1979 to 2011, it rejected only 11. But its presence has helped ensure that the administration’s requests are serious. In 2002, it ruled that the Department of Justice had overstepped its bounds, giving prosecutors too much authority. (That decision was later overturned by an appeals court.)
The position of the Neo-Warriors, while anathema to those of us disinclined to adopt the view that calling something a "war" makes it so, at least has the benefit of being a principled position. They believe in an imperial presidency, and that the authority to safeguard the public entitled the president to kill at will. As strongly as I may disagree with the view, at least I can respect the consistency of the position.
The Times, sadly, tries to split the baby. Of the many blights on the legal system, the FISA courts is one of the worst. It is reminiscent of the star chamber, where one side (lemme guess, the prosecution?) gets to go in, on its own, present its evidence and, without anyone to dispute its claims, gets its order. This is the appearance of process without any substance. Can you imagine how utterly awful and baseless the 11 wiretap applications must have been to get rejected?
When word got out that Congress had set up secret FISA courts back in the late 70's, there was outrage among a select group of lawyers (lemme guess, criminal defense lawyers?) that such a thing could exist in the United States. Secret courts? Totally one-sided, throwing the constitutional rights of Americans under the bus without anyone to question, or even know, what was happening?
Time heals all wounds, and this one scabbed over nicely. The FISA courts have become an accepted part of the wiretapping landscape, and their existence doesn't raise a peep anymore. What was once unthinkably outrageous is now just another piece of the least dangerous branch.
So if the FISA courts, the rubber stamp of the prosecution's arsenal, has become so widely accepted, why not create more secret courts? Why not create a secret court to provide judicial authorization for the executive to execute our enemies? For crying out loud, these are the enemies of America! The president says so, and he wouldn't lie.
Maybe not, though he could be wrong. But the secret court being asked to rubber stamp the kill order would never know because there would be no one there to offer a contrasting view, to question the assumptions, to challenge the evidence. And there would be no one even aware that Sam Smith was just rubber stamped until the proud announcement that he was no longer with us, terminated with extreme prejudice.
If it's acceptable that the executive branch maintains a kill list of those it perceives to be enemies of our nation, then why create another secret court to put on a dog and pony show that creates the appearance of legitimacy without the substance of due process? Are Americans so vapid as to be satisfied with theater in lieu of actual adversarial scrutiny? Will this be Real Housewives of the Judiciary?
Worse still, one secret court was bad. Very bad. And yet it's become a part of our judicial fabric. For whatever reason, our acceptance of this singular blight hasn't given rise to some scholar screaming that we should have secret courts handling all of our sensitive issues since the FISA court has done so spectacularly well in stamping wiretap orders. But now the New York Times does what others have been too ashamed to do, promote the idea of secret courts as a solution.
No more secret courts, and if it were up to me, the FISA court would go too. But no more. If the President has the authority to kill Americans he deems enemies, as the Neo-Warriors would have it, then no judicial intervention is needed, and the judiciary should refuse to become an actor in the president's show.
And if the Chief Executive cannot kill Americans at will because the Constitution of the United States of America does not permit him (or her, when the time comes) to redefine war to mean whatever the Neo-Warriors want it to mean, then no secret ex-parte court order can make it constitutional.
Just as no one can be half dead, no compromise can make the kill lists more palatable. It's one of those things that is either right or wrong, and the New York Times' attempt to split the (alleged) terrorist is completely misguided.
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Source: http://blog.simplejustice.us/2013/02/14/20130213.aspx?ref=rss
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