Shorter Neal Katyal: Please Appoint Me Judge!

If it weren’t for this line, disdaining what judges do,

But judges should be left to what they know.

I would be convinced that this op-ed from Neal Katyal, arguing against a Drone and/or Targeted Killing Court, was a transparent attempt to curry favor with the man who gets to nominate people for lifetime appointments to federal courts.

Because it strikes me as a dishonest argument, one made by someone who almost surely knows better, repeating the AUMF fallacy.

But there is no true precedent for interposing courts into military decisions about who, what and when to strike militarily. Putting aside the serious constitutional implications of such a proposal, courts are simply not institutionally equipped to play such a role.

While the Bush Administration didn’t read Ted Olson into its worst OLC opinions when he was Solicitor General — and so it’s possible (though unlikely) that Katyal was likewise not read into the June 2010 opinion that authorized the CIA to kill Anwar al-Awlaki during the time he was Acting Solicitor General — he was almost certainly part of the legal strategy to respond to the ACLU/CCR suit hoping to enjoin the President from killing Awlaki unless he represented an imminent threat, which also occurred while he was Acting SG.

Neal Katyal almost certainly knows the CIA was cleared to carry out that killing (though he had left the Administration by the time Awlaki was ultimately killed), and that this was a covert op.

To argue for a star chamber within the Executive Branch, he paints the judges who serve on the FISA Court as generalists who have no clue about national security issues.

There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.

[snip]

What reason does the FISA Court give us to think that judges are better than specialists at keeping executive power in check?

The FISA Court includes judges like Thomas Hogan (who has been a District Court judge in DC since Katyal was 12) and is now led by Reggie Walton (who joined DC District back when President Obama was still a State Senator). While they’ve seen their share of DC drug cases, they’ve also presided over some high profile national security cases (both had a part in the Libby case, both have issued key rulings in Gitmo habeas cases).  But Katyal thinks they’re just not capable of reviewing whether an American should be killed by his government with no due process.

There’s more that’s laugh out loud funny in Katyal’s op-ed, such as the suggestion that targeted killing of an American (as far as I know, no one is even considering using a FISA process with non-citizens) presents no Constitutional issues.

Even the questions placed before the FISA Court aren’t comparable to what a drone court would face; they involve more traditional constitutional issues — not rapidly developing questions about whether to target an individual for assassination by a drone strike.

And the suggestion that the Executive can be trusted to hand over its own analysis on targeted killing to Congress.

The adjudicator would be a panel of the president’s most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review.

Not to mention that a “court” which the President was free to overrule amounts to any kind of due process.

Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

Mind you. I, like Katyal, think the idea of turning FISA into a Drone and/or Targeted Killing court is terrible. But I’m not arguing that’s because an actual court would infringe too much on the President’s claimed authority to kill Americans at will.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

4 replies
  1. Peterr says:

    What reason does the FISA Court give us to think that judges are better than specialists at keeping executive power in check?

    What reason does Katysl give us to think that executive branch lawyers are better than Article III judges at keeping executive power in check?

  2. emptywheel says:

    @Peterr: It’s even stupider than that. Katyal is pretending that these specialists don’t review all this BEFORE they go to the FISA Court.

    So basically he’s saying, “Why should the FISA Court be able to check the work of the specialists who do this review before they submit it to the COurt?”

  3. P J Evans says:

    His suggestion that the executive branch can be trusted to hand over its analyses is laughable. (As in ‘point and laugh’. He clearly isn’t paying as much attention as ew.)

  4. JTMinIA says:

    My favorite parts (note: that was sarcastic) are “they are used to being in absolute control” and “they usually rule on matters after the fact, not beforehand.” I like the first because it says, in effect, that (Katyal thinks that) the FISA Court is stuck in a pre-9/11 mind-set, when black was black, white was white, legal was legal, and Article III gizmos had absolute say over Article III issues. I like the second because it says, rather bluntly, that (Katyal thinks that) getting warrants before wire-tapping people is also a thing of the past.

    I look forward, therefore, to his speedy confirmation (assuming that Lindsey Graham doesn’t demand to know Obama’s golf handicap before lifting the expected filibuster).

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