We've been discussing expanded executive power, and especially the increased power of the president in his role as commander-in-chief. Part of this concerned claims that the president has broad authority over launching cyber attacks, and some concerned the president's ability to direct droe attacks. These are generally done without external checks. presidents tend to claim that doing so - in any situation - violates their commander-in-chief powers, but since some of these have been launched against American citizens who seem to have sided against the US.
This raises questions about due process.
A former solicitor general for the Bush Administration looks critically at the idea that a drone court in the judiciary should be set up to provide that check on the executive. He does not think this is a good idea:
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.
He argues that a national security court - contained within the executive branch - is preferable:
Imagine instead that the president had an internal court, staffed by expert lawyers to represent both sides. Those lawyers, like the Judge Advocate General’s Corps in the military, would switch sides every few years, to develop both expertise as repeat players and the ability to understand the other point of view.
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. 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.
Such a court would embed accountability and expertise into the drone program. With a federal drone court, it would simply be too easy for a president or other executive-branch official to point his finger at a federal judge for the failure to act. With an internal court, it would be impossible to avoid blame.
Of course this does not provide a check in the way that the authors of the Constitution envisioned it, but it does reiterate the idea that the president has special powers - and a good deal of discretion - when it comes to military affairs.
