Rise of the Drones
By Michael Krull
By Michael Krull
Throughout the Bush administration, there was widespread derision and invective launched from the Left against the notion that the United States’ national security apparatus should seek prior judicial approval for certain non-lethal interrogation techniques, including waterboarding. The president, vice president and other officials were routinely accused of being war criminals for entertaining the thought of such activities, let alone the commission of them. In some cases, investigations were commenced to stop these activities and the threat of prosecution for human rights abuses were held over the heads of administration officials, members of the military and intelligence community.
Today, there is nary a peep from the Left concerning the Obama administration’s use of drones for targeted assassinations of our foreign enemies in the unpleasantness that used to be known as the War on Terror, but also of American citizens who meet the Constitutional and textbook example of traitor.
I fully admit that there is a certain satisfaction gained from taking out the bad guys from an altitude of several hundred – or even thousands – of feet in the air with minimal risk to U.S. personnel, but the question must be asked: Are drone strikes on U.S. citizens pragmatically, morally and Constitutionally defensible?
The U.S. Constitution applies at all times to American citizens regardless of where they are living – these include the Fifth and Sixth Amendment protections concerning due process.
The justification for drone strikes supplied by the Obama administration is that the “target” must pose an “imminent” threat, but that condition may be fulfilled so long as there is evidence that the “target” is “personally and continually involved in planning terrorist attacks against the U.S.” This stretches to the breaking point the plausibility of the government’s claim that such drone strikes are acts of self-defense analogous to a police officer killing an assailant in order to protect the innocent.
In short, the Obama administration’s position assumes that the president can unilaterally declare U.S. citizens as enemy combatants without due process.
The Obama administration claims that three conditions must be met before the declaration is made: 1) a high-level U.S. official (not necessarily the president) decides that the target is a “senior operational leader of al Qaida who poses an imminent threat of violent attack against the U.S.; 2) capture is infeasible; and 3) the operation would be conducted according to the laws of war (the classical principles of which are necessity, discrimination, proportionality and humanity).
This justification raises more questions than it answers, among which are:
- How can judges make these determinations (especially that capture is infeasible) before the fact?
- Sixth Amendment considerations about judges issuing warrants that can’t be challenged by the targets in a judicial proceeding?
- Does the president have these powers when there has been no formal declaration of war by Congress?
- Just what is the balance of power between the executive and legislative branches of government vis-à-vis the War Powers Act?
- Does this set a precedent that in future would hamper, restrict or enlarge presidential war powers?
- Is firing a missile at an individual a proportional and humane act?
Robert Gates (former CIA Director and Secretary of Defense under both President George W. Bush and President Obama) has suggested the concept of a drone court be created by Congress and modeled after the Foreign Intelligence Surveillance Act (FISA) courts, which approve requests for warrants and authorizing surveillance of suspected spies and terrorists. The drone court would similarly make the determination that certain U.S. citizens be declared traitors/enemy combatants, thereby satisfying the Constitutional requirement of due process.
On the face of it, this might go some way to providing due process but it also raises some questions, among which are:
- Does Congress have the Constitutional authority to approve or forbid the president from exercising war powers with or without judicial approval in advance?
- Is it desirable for Congress and the judiciary to endorse a secret program targeting U.S. citizens on flimsy Constitutional, judicial and moral grounds without the public weighing in on the issue?
Regardless of the legal contortions, the idea of the regular use of drones to eliminate our enemies is short sighted. Much of the information gathered which ultimately led to the attack on and death of Osama bin Laden came from the painstaking collection and analysis of intelligence gained from electronic intercepts, good, old-fashioned human intelligence, as well as direct interrogation of captured al Qaeda operatives – perhaps even using the “enhanced interrogation techniques” so despised by the Left a few short years ago. With every “target” we wipe out from the air we miss a potential treasure trove of intelligence which might provide clues to plots or attacks that are in the works.
The use of drones should be an extraordinary, not routine, measure in the fight against our enemies – especially if the people in question are American citizens.
On the domestic front, with more and more federal law enforcement agencies – and even police departments in cities large and small – planning to deploy drones, this issue should be a grave concern to all Americans regardless of how we feel about killing our enemies on far-away battlefields. We need to be cautious when it comes to the Constitution and signing away the pre-political rights all citizens enjoy. How we use the Constitution to justify the targeting of treasonous American citizens abroad will ripple through to the domestic use of drones.
Michael Krull is a graduate of Luther College and Iowa State University. He has worked on disaster relief for the State Department, a major Washington, DC public relations and political consulting firm, a think tank, and is a member of the Council on Emerging National Security Affairs. He is currently a professor of politics, media, public policy and international affairs at Georgetown University, as well as co-founder and principal of the business information company Resilient Corporation.