Yesterday the FBI got all kinds of worked up about a drone sighting near JFK, even if it was careful to avoid the use of that rather-loaded noun. But while rising civilian drone use is becoming a rather convoluted legal topic, it's clear that the government has no problems using its favorite aerial surveillance technology with little legal oversight.
Now, a big question raised during the Christopher Dorner manhunt was whether or not a lethal drone strike on a US citizen on US soil would be legal. Attorney General Eric Holder has just commented on that matter, and while it would allegedly require war-like circumstances, he certainly didn't rule it out.
The question has been put forth to the administration by Senator Rand Paul, who's pressed both the White House and John Brennan, Obama's choice to run the CIA, to answer whether a US drone strike on a US citizen on US soil without due process would be legal. Paul received response letters from Brennan and Holder, which Mother Jones has scanned and hosted.
First, the key portion of Brennan's letter:
The Department of Justice will address your legal question regarding the President’s authorities under separate cover. I can, however, state unequivocally that the agency I have been nominated to lead, the CIA, does not conduct lethal operations inside the United State – nor does it have any authority to do so.
Fair enough. It's also true: the CIA isn't authorized to conduct lethal operations in the US, and there's no reason to expect that to change any time soon–at least officially, if you're of a conspiratorial persuasion. The CIA is concerned with foreign operations, it's that simple. But that doesn't mean that there aren't federal agencies tasked with running counter-terror and police operations in the homeland–the Department of Justice, Homeland Security and the FBI, to name a big trio.
If any one had the power to launch a drone strike in the US, it'd be them, not the CIA. So what does Attorney General Holder, who's essentially the chief lawyer for the White House, think about the question? Well, a drone strike would require a "hypothetical" scenario, but it's not out of the question. Here's the main section of the letter in full:
As members of this administration have previously indicated, the US government has not carried out drone strikes in the United States and has no intention of doing so. As a policy matter moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.
The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront. It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the president could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.
Were such an emergency to arise, I would examine the particular facts and circumstances before advising the president of the scope of his authority.
Adam Serwer at Mother Jones has a good breakdown of how "coy" the White House has been with regards to the civilian drone strike question. My first thought is that Holder is hardly clear about what scenario he's discussing. Paul was asking directly about a drone strike on a US citizen, and Holder appears to be answering that, if war broke out on US soil, drone strikes would be legal. But is that even a question?
Drones are a military weapon like any other, and if they'd been around during Pearl Harbor, why wouldn't they be in play for the military? (That assumes that they could have been effective. At Pearl Harbor, maybe not to much, but when Alaska was invaded by the Japanese, drones probably could have been useful.) Obviously that's a fairly far-fetched scenario these days, but it also totally avoids Paul's question.
It's insane that the federal government still refuses to simply say "Of course we won't kill US citizens on US soil. That's what's written in the Fifth and Fourteenth Amendments."
But imagine if Holder's scenario was carried out by an American. For example, imagine if drones were around during the Oklahoma City bombing, which was the most destructive act of terrorism on US soil until September 11. Could Timothy McVeigh or Terry Nichols have legally been taken out with a drone strike without due process? Holder says it's possible, or, at the very least, hardly attempts to rule it out.
Should this even come as a surprise? The watershed moment for extra-judicial killings of American civilians was the death-by-drone of Anwar al-Awlaki who, no matter how unsavory he was, was an American citizen. Holder himself notes that hundreds have been convicted of terror-related crimes in federal courts, yet al-Awlaki was killed without trial because of a hazy classification as an enemy combatant. As we've since learned, the government's own guidelines for extra-judicial killings are extraordinarily vague.
The government has been absolutely gutting the Fourth, Fifth, and Fourteenth Amendments since the wars on terror and drugs began. Now, with the rise of drones as the all-seeing weapons of choice–mostly because they're so damn sneaky, and can be controlled from anywhere–that gutting is coming to its logical conclusion.
Drone laws are shaping up so that no one but the government can put them to effective use, and now we've got Holder equivocating with vague hypotheticals that complete avoid Paul's question, which was specific and pointed enough to easily deal with. It's fucking insane that the federal government still refuses to simply say "Of course we won't kill US citizens on US soil. That's what's written in the Fifth and Fourteenth Amendments." So while kill matrices and all that shit might not ever make it to US soil, we've sure as hell yet to even get a basic guarantee that they won't.