There is nothing imminent as far as a concrete proposal to set up a secret legal process to decide whether the president can order a drone strike against an American citizen. But the idea is gaining traction in Congress and may be a compromise that would satisfy some civil libertarians and defense hawks alike.
While the idea of a judicial review of such operations may be gaining political currency, multiple U.S. officials said on Friday that imminent action by the U.S. Congress or the White House to create one is unlikely. The idea is being actively considered, however, according to a White House official.
At Thursday's confirmation hearing for CIA director nominee John Brennan, senators discussed establishing a secret court or tribunal to rule on the validity of cases that U.S. intelligence agencies draw up for killing suspected militants using drones.
The court could be modeled on an existing court which examines applications for electronic eavesdropping on suspected spies or terrorists.
Senator Dianne Feinstein, Democratic chairwoman of the Senate Intelligence Committee, said Thursday that she planned to "review proposals for ... legislation to ensure that drone strikes are carried out in a manner consistent with our values, and the proposal to create an analogue of the Foreign Intelligence Surveillance Court to review the conduct of such strikes."
Senator Angus King, a Maine independent, said during the hearing that he envisioned a scenario in which executive branch officials would go before a drone court "in a confidential and top-secret way, make the case that this American citizen is an enemy combatant, and at least that would be ... some check on the activities of the executive."
King suggested that only drone attacks on U.S. citizens would need court approval; other proposals leave open the possibility that such a court could also rule regarding drone strikes on non-Americans.
On Friday, a White House official indicated the administration was open to the idea. Without specifically mentioning drones, the official said "the White House has been discussing various ways there could be independent review of counterterrorism actions for more than a year."
Even if a special court were established, however, congressional and administration officials said it would not happen quickly.
Congressional aides said discussions are at a preliminary stage, with officials also reviewing proposals that law professors have floated in academic articles.
Once again, the question of time constraints will come up just as it did in the debate over warrantless wiretapping and bypassing the FISA court. In the case of drone strikes, time is even more critical because the targeted terrorist may only be in the crosshairs of the drone for a matter of minutes.
The fact that we are having this discussion now after years of unlimited drone strikes calls into question the administration's commitment to the rule of law and constitutional rights. Using the excuse of "imminent threat" where none exists doesn't help Obama's case either.
A "Drone Court" may be part of the answer, although an imperfect one.