“I believe the idea of a national security court is worth serious consideration, for the sake of our democratic process. I see certain advantages, but I also see a number of legal and practical problems. The advisability of the idea depends in very large part on the scope of what it is the courts will review,” he said.

Johnson’s talk, “A ‘Drone Court’: The Pros and Cons” was the keynote speech for “21st Century Warfare: Law, the Enemy, and the Battlefield,” a daylong conference on March 18 sponsored by the Fordham Law Center on National Security and held on the Lincoln Center campus.

Johnson pronounced himself a skeptic of a “drone court,” a suggestion that has been floated in foreign policy circles that could be modeled after the Foreign Intelligence Surveillance Act (FISA) court proceedings.

He noted that although current policy—which allows for the use of drones and other force against terrorists who are plotting overseas from a remote location to kill innocent people, and who cannot be feasibly arrested or captured—is acceptable to many legal experts, the public is suspicious of executive power shrouded in secrecy.

“In the absence of an official picture of what our government is doing, and by what authority, many in the public fill the void by envisioning the worst. They see dark images of civilians and military national security personnel in the basement of the White House acting—as Senator Angus King put it—‘as judge, jury, and executioner.’”

Johnson said federal courts have been critical of the U.S. government’s contention that while drone strikes are legal, the Executive branch does not have to justify or explain why they are legal (or even admit that they exist).

In January, he said that U.S. District Judge Colleen McMahon, for instance, compared the government’s position in a Freedom of Information Request about the program to Alice In Wonderland.

According to Johnson, like the FISA court, a “drone court” might be criticized as a rubber stamp for targeted killings, he said. Judges might also resist being a part of the process, as they see courts as venues for resolving issues between parties, not as signers of death warrants based on classified submissions.

“Judges are accustomed to making legal determinations based on a defined settled set of facts, a picture that has already been painted. Not a moving target, which is what we are literally talking about.”

He advocated three suggestions for moving forward:

-Continued efforts at transparency

-Keeping targeted lethal force within the realm of the military and away from the CIA, where it is least controversial and on its strongest most traditional foundation.

-Institutionalizing the president’s own internal process of review to ensure the integrity of decision-making in this context.

Ultimately though, he cautioned that the final burden and responsibility for targeted killing will always be the President’s, under Article 2 of the U.S. Constitution.

“He may delegate it within his own chain of command, but he cannot assign a part of it away to another branch of government, nor have it taken away by an act of Congress,” he said.

The conference keynote address, “A ‘Drone Court’: The Pros and Cons” will be delivered by Jeh Johnson, former general counsel for the Department of Defense.

Panels will bring together political and military leaders, national security and cyber experts, leading journalists, and others to provide a platform for understanding the next phase of America’s international ‘war on terror’ and, in a larger sense, the future of warfare.

They will address:
-Targeted Killing: Ethical, Political and Foreign Policy Implications
-The Laws Governing Targeted Killing and Non-traditional Warfare
-A Conversation on Cyber
-Understanding Today’s Wars

“21st Century Warfare: Law, the Enemy, and the Battlefield”
Monday, March 18
9 a.m. – 5 p.m.
McNally Amphitheatre, Fordham School of Law, Lincoln Center campus

To RSVP, email [email protected], or visit www.CenterOnNationalSecurity.org/RSVP

“Executive Power and Civil Liberties: Debating Obama’s Targeted Killing Program,” pitted against each other Martin S. Flaherty, Leitner Family Professor of International Human Rights Law and founding co-director of the Leitner Center for International Law and Justice, and Jack Goldsmith, Henry L. Shattuck Professor of Law at Harvard Law School.

Goldsmith, who was also a former assistant attorney general at the Office of Legal Counsel and former special counsel to the Department of Defense, lead off the with a defense of drone strikes, which are estimated to have happened 320 times in the last five years, mostly in Pakistan but also in Somalia, Yemen, and Afghanistan.

U.S. and international law justifies killing individuals when they’re not on a “hot battlefield,” for reasons of self-defense, and if the country where they reside is unable or unwilling to detain them. The newest generation of drones allows for a greater emphasis on the targeting of individuals, cutting down on civilian casualties.

“We can use ICBMS, we can put troops on the ground who can shoot at the individuals, or we can use the drone technologies that are becoming increasingly prevalent, said Goldsmith. “I believe that the use of drones and the focus on individuation should be seen as a humanitarian victory, and not something that we should be upset about.

“Once you acknowledge that we’re engaged in war with non state terrorists groups, targeted killing, especially with drone technologies, is the most humanitarian, cost effective means of dealing with the threat.”

While Flaherty did not dispute the usefulness of drones in the fight against terrorism, he questioned whether it is prudent to allow the executive branch exclusive discretion over them. Normally, when the government wants to conduct surveillance or have someone detained, it has to work with the courts, he said.

The drone program, on the other hand, is swathed in secrecy and “does not exist” according to the federal government; the only reason the public knows about the casualties it has generated is because of the work of journalists and activists. Therefore, it’s impossible to know whether care is being taken to only target terrorists or how many civilians have been killed, he said.

“We don’t know enough of the facts to base policy decisions,” said Flaherty. “We don’t know enough to make intelligent decisions about the balance between security payoff and violation of individual’s rights, as well as the back fire.”
Flaherty noted that the Times Square bomber said one of his inspirations was the fact that there was an alleged drone attack that killed 20 civilians in Pakistan and Afghanistan.

“If that’s what motivated him, that’s going to be the tradeoff,” Flaherty said.

Both Flaherty and Goldsmith agreed that President Obama is taking seriously the responsibility of when and if to target and kill foreigners overseas, or—in the case of the September 2011 killing of Anwar al-Awlaki in Yemen—an American citizen.
At the end of the day, what makes people squeamish is the notion of allowing one person to decide who lives and who dies, Goldsmith said.

“That’s really what the targeting issue puts on the table, and we have to face that. This is something commanders in the field have to do all the time with a lot less deliberation, a lot less intelligence, a lot less foresight, and a lot less legal input,” he said.

Flaherty cautioned, however, that future administrations might not be so cautious. He cited Israel as an example of how the courts could be included in the process.

“The Israeli Supreme Court said ‘Look, we defer to the executive when it comes to specific targeting decisions; that’s their expertise. But our expertise is interpreting the law and making sure that actual operations comport with it,’” he said.
“If Israel can fight terrorism with judicial scrutiny, I think the United States can as well.”

William M. Treanor, executive vice president and dean of the Law Center, professor of law at Georgetown University, and former dean of Fordham Law School, moderated the evening, which was sponsored by Peggy Hill, LAW ’64.