Since 1978, a special federal court has presided over covert government eavesdropping for national security purposes.
The Foreign Intelligence Surveillance Act court operates in secret, ruling quickly on requests to intercept phone calls and other communications, including those involving U.S. citizens suspected of sharing information with foreign governments and terrorist groups. The judges almost always approve.
So would a secret court empaneled to review and rule on presidential directives to kill suspected terrorists abroad.
But the fundamental issue isn't whether a court would approve a death warrant, it's whether a president or any other public official should have singular authority to issue such an order, especially when it targets a U.S. citizen.
We think not.
Our government is characterized by separation of powers and checks and balances. Our justice system is based on the principle of due process. And our citizens are entitled to the full protections of the Constitution and the law.
Some equate drone attacks with President Franklin Roosevelt's order to target a plane carrying Japanese Adm. Isoroku Yamamoto during World War II. But he was an enemy combatant, not a U.S. citizen, and, unlike today, there was a formal declaration of war.
There may be circumstances when the targeted killing of a U.S. citizen is justified. Anwar al-Awlaki may have presented just such a case.
Awlaki was born in New Mexico and went on to be a leader of al-Qaida in the Arabian Peninsula. He preached jihad and recruited terrorists. He's believed to have been involved in the "Underwear bomber" plot, which nearly succeeded in blowing up a U.S. airliner en route to Detroit on Christmas Day in 2009. Awlaki also had a role in attempted bombings on two other airplanes in 2010.
There's ample reason to believe he was a threat to the nation. But he was living in Yemen, beyond the reach of U.S. authorities — until he was killed in a drone strike in 2011. Killed with him was Samir Kahn, another U.S. citizen accused of terrorism. Two weeks later, a drone strike killed Awlaki's 16-year-son. He, too, was a U.S. citizen. Family members say he had no ties to terrorism, and U.S. officials have offered no evidence to the contrary.
A drone court probably would have approved a kill order for Awlakiiand perhaps for Khan, too. Would it have allowed an attack on a teenager? It certainly would have insisted on evidence that he was a legitimate threat.
But there is no court, there was no hearing. For now, the decision to kill is made by President Barack Obama. He has never laid out the criteria in public. An unsigned Justice Department white paper obtained by NBC News says it's lawful if "an informed, high-level official" believes there's "an imminent threat of violent attack against the United States."
The FISA court was created after a scandal: U.S. intelligence agencies were caught spying on American citizens. Allowing a court to review evidence of an "imminent threat" would add an element of due process to drone strikes before another scandal — and before some other country develops drones and adopts our loose standards to authorize attacks in the United States.