Episode 179: March 22, 2013
Today’s Topic: Drone Attacks Against Americans
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Attack of the Drones!
On Wednesday, March 6, 2013, Republican Senator Rand Paul took the unusual step of engaging in a real old-fashioned filibuster. That is, he started talking during a Senate debate and then he just kept going. And going. Just like the Jimmy Stewart character in Mr. Smith Goes to Washington – he refused to yield the floor. For 13 hours! The filibuster was motivated by Senator Paul’s stated concern about whether the federal government could target U.S. citizens with “drones,” that is, small remote-controlled planes that can be used to drop bombs. In today’s episode, I’ll discuss the controversy over the use of drones against American citizens.
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Military Drones Have Been Used Since 9/11
The Obama administration, like the Bush administration before it, has used “unmanned aerial vehicles,” otherwise known as “drones,” in the War Against Terror. According to a Washington Post report in the fall of 2012, almost 3,000 militants and civilians have been killed since the 9/11 attacks a decade ago, and the Obama administration has been ramping up the use of drones.
Attacks Against Americans Are Possible
The drone attacks have taken place overseas in places like Afghanistan and Yemen. But when President Obama nominated John Brennan as new director of the Central Intelligence Agency, Senator Rand asked Brennan to confirm that the administration would not order a lethal drone strike against a U.S. citizen on U.S. soil. The answers were not entirely comforting: both Brennan and, later, Attorney General Eric Holder stated that the government has not conducted lethal drone strikes within the U.S. “and has no intention of doing so.” But the administration did not rule out the possibility.
Are Americans Engaged in “Combat” Against the United States?
Mr. Holder subsequently clarified that the government did not assert the authority to kill Americans without trial if they are not engaged in combat against the government. But the critical issue then is: What does it mean to be engaged in “combat” against the United States? In September 2011, the U.S. used armed drones to kill two of its citizens in Yemen: Anwar al-Awlaki and Samir Khan. This was reportedly the first time since the Civil War that the U.S. government had ordered the death of Americans without trial.
Both men had allegedly participated in al-Qaeda but nonetheless they were citizens. The Fifth Amendment to the Constitution says that no person can be deprived of his life (or liberty or property) without “due process.” And when it comes to Americans who commit “treason” – that is, engaging in war against the U.S. or giving “aid and comfort” to her enemies – the Constitution provides very specific due process requirements. A conviction for treason must be supported by the testimony of at least two witnesses. The counter argument is that al-Awlaki and Khan were not merely aiding the enemy, but had joined the enemy – effectively renouncing their U.S. citizenship.
Traitors or Combatants?
Granted, al-Awlaki and Khan were not on U.S. soil at the time of the attack, but that does not necessarily change the analysis. Indeed, Federal law prohibits anyone – including the government – from killing American nationals overseas. However, the Obama administration concluded that the federal statute must implicitly contain exceptions for national security threats. And there are legal experts who maintain that once U.S. citizens join up with an enemy force with which we are at war, they become valid targets as enemy combatants – and the government doesn’t have to wait until we literally confront them on the battlefield. The bottom line appears to be this: If Americans are committing treason by supporting our enemies, they must get due process, but if they actually join enemy forces, they become combatants who do not merit due process.
Smile, You’re on Drone Camera
Although drones haven’t been used to attack Americans on American soil, there is a separate controversy about the use of drones for surveillance purposes. Drones are a potentially powerful law enforcement tool because they can catch people breaking the law who don’t even know they’re being watched. Some civil liberties groups complain that the use of surveillance drones would violate the Fourth Amendment to the Constitution, which protects citizens against unreasonable “searches and seizures.” Whether such challenges hold up in court may depend upon the surveillance technology that is used by the drones. The Supreme Court has upheld the ability of law enforcement to use airplanes to gather evidence – at least to the extent the evidence is visible to the naked eye or an ordinary camera. Other decisions, however, suggest that more intrusive technologies, like thermal imaging, might violate the Fourth Amendment if not supported by a warrant. In the meantime, a number of state legislatures have either passed or are considering laws to prevent law enforcement from using drones to obtain evidence against citizens.
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