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Why Would Jeh Johnson Suggest the Drone and/or Targeted Killing Court Would Be Bipartisan?

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I’ll have more to say about Jeh Johnson’s skeptical speech on a drone and/or targeted killing court later.

But I wanted to point to this detail:

Our government finds itself in a lose-lose proposition: it fails to officially confirm many of its counterterrorism successes, and fails to officially confirm, deny or clarify unsubstantiated reports of civilian casualties.

Our government’s good efforts for the safety of the people risks an erosion of support by the people.

It is in this atmosphere that the idea of a national security court as a solution to the problem — an idea that for a long time existed only on the margins of the debate about U.S. counterterrorism policy but is now entertained by more mainstream thinkers such as Senator Diane Feinstein and a man I respect greatly, my former client Robert Gates – has gained momentum.

To be sure, a national security court composed of a bipartisan group of federal judges with life tenure, to approve targeted lethal force, would bring some added levels of credibility, independence and rigor to the process, and those are worthy goals.

In the eyes of the American public, judges are for the most part respected for their independence.

In the eyes of the international community, a practice that is becoming increasingly controversial would be placed on a more credible footing. [my emphasis]

As I understand it, the model under discussion is simply to give the existing FISA Court the additional task of reviewing kill decisions, not creating a new court.Yet the FISA Court — whose judges are appointed by the Chief Justice of the Supreme Court (and therefore, for the entire life of the FISA Court, by a Republican appointee) — is in no way bipartisan.

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House Intelligence Staffer Tried to Intervene on Illegal Wiretap Program

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Scott Shane and Eric Lichtblau tell a sort of weird story of how a House Intelligence Committee staffer, Diane Roark, tried to reach out to William Rehnquist to get him to review Dick Cheney’s illegal wiretapping program.

Within months of the beginning of the eavesdropping program in October 2001, a staff member of the House Intelligence Committee, alerted to the possibility of illegal spying by N.S.A. insiders and hoping to prompt a high-level legal review, wrote to Chief Justice Rehnquist asking for a meeting, according to several people familiar with the episode.

The Congressional staff member, Diane S. Roark, routed the letter through the chief justice’s daughter, Janet Rehnquist, then the inspector general of the Department of Health and Human Services; Ms. Rehnquist was a high school acquaintance of one of Ms. Roark’s N.S.A. contacts.

There was no response, and it is not known whether the letter was seen by the chief justice or prompted him to make inquiries.

What’s weird about the story, first of all, is the method of approach. Are you telling me there are Congressional staffers who think Rehnquist could have legally reviewed this program in response to a request sent via his daughter (though it sounds like something Arlen “no longer Haggis or Scrapple” Specter might try)?

But then there’s a detail that Shane and Lichtblau don’t mention: Roark left HPSCI just after this attempt to have Rehnquist review the illegal wiretap program, ostensibly retiring. Read more →