Drone Courts

60 Pages Posted: 4 Aug 2013

Date Written: August 2, 2013


The age of the drones has dawned. Rapid technological development will soon permit the government to deploy micro-scale self-sustaining drones with networked surveillance and precision kinetic capabilities. A recent U.S. Air Force video describes these planned micro-drones as "unobtrusive, pervasive, and lethal". Even if moral and international law concerns about drones used for targeted killings are set aside, current U.S. policy concerning drone use is inadequate to protect the public from possible abuses of Executive power. In particular, the judicial branch should play a role in evaluating targeted drone killings, at least outside an active war zone and at least to the extent U.S. citizens may be impacted directly or as collateral damage. Although the judicial branch has historically played only a limited role with respect to national security and wartime executive branch decisions, there is valuable precedent dating back to the Militia Act of 1792 for ex ante judicial review of the President’s use of military force on U.S. soil. Current proposals for a drone court that would utilize a warrant process similar to that employed by under the Foreign Intelligence Surveillance Act are a good start, but the standards and procedures of the FISA Court are in important ways inadequate. Congress should establish a limited jurisdiction judicial branch tribunal that could provide an important independent measure of accountability over the use of killer drones.

Keywords: drones, constitutional law, executive power, separation of powers, war powers, emergency powers, FISA

Suggested Citation

Opderbeck, David W., Drone Courts (August 2, 2013). Seton Hall Public Law Research Paper No. 2305315, Available at SSRN: https://ssrn.com/abstract=2305315 or http://dx.doi.org/10.2139/ssrn.2305315

David W. Opderbeck (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8496 (Phone)

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