Ex-Federal Judge Says Drone Kill Court a "Bad Idea"

February 19, 2013 • 10:24AM

Retired federal judge James Robertson, who served on the U.S. District Court for the District of Columbia, 1994 to 2010, has a strong oped in the Feb. 17th Washington Post explaining that federal judges should never be "assigned the task of monitoring, mediating and approving the killer instincts of our government." Having followed recent arguments that this could make legal Obama's program to kill Americans without charges or a trial, Robertson says, "This is a very bad idea."

"A search warrant is not a death warrant," he writes, in answer to the "politicians, pundits and professors" who say that "courts routinely rule on government requests for search warrants and, in the national security context, on requests for foreign intelligence surveillance."

Robertson refers back to 1793, when the first chief justice of the Supreme Court, John Jay, refused to answer George's Washingtons legal questions concerning a British ship that had been captured and brought to an American port by the French. To give an advisory opinion would "violate the lines of separation drawn by the Constitution," Jay wrote to Washington, explains Robertson, who quotes from Jay's eloquent letter.

He also insists that federal courts must now "act ex parte — hearing one side only — or sit in a Star Chamber, like the co-opted judges of 16th-century England. The targets of a drone strike make no appearance before a judge; they have no notice of the charges against them; no lawyer; no chance to call witnesses or confront the evidence against them; no due process rights. Their case is necessarily considered in absentia and in secret. An American judge cannot do American justice in such a case. If he did, his independence would be severely compromised."

Jay left the decision to Washington, telling him he trusted that his "usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States."