Sunday, February 17, 2013

Gov't Could Use Drones in U.S.

An analysis at the Daily Beast of the Administration's white paper on using drones concludes that there is nothing in the white paper that would prohibit the use of drones to kill U.S. citizens within the borders of the United States.
In fact there is nothing in the white paper's legal analysis explaining why it is only permissible to kill a citizen abroad. To the contrary, the thrust of the analysis points to the conclusion that the location of the strike doesn't actually matter. As long as the other requirements are met—such as the individual being a senior al Qaeda leader whose capture is "infeasible"—Albuquerque is no different from Abottabbad.How is this possible? Let's assume for the sake of argument that the white paper's overall legal approach is broadly correct—in other words, put aside all swirling debate over "imminence" and "due process" and assume that the smart lawyers at the Justice Department basically have it right.
The reason that it doesn't matter where the target (read: American citizen) is located is one that liberals ought to love. As far as citizens are concerned, the Constitution really doesn't discriminate by geography. The constitutional rights of Americans don't get checked at the jetway door; they are more or less the same abroad as they are at home. So as long as a lethal strike passes muster in constitutional terms, the location of the target is immaterial.
... Nor, given the premises of the white paper, is it obvious why capture would even have to be attempted. If, as the executive branch states, the U.S. is involved in an armed conflict with al Qaeda, killing enemy operatives—regardless of their citizenship—is perfectly legal. Just as Americans fighting for the Confederacy were killed in the Civil War without any requirement to attempt capture first, so too can Americans fighting for the enemy be killed in this war. Of course, this only begs the question of whether we are actually at war—and if so, what war means when it is waged against a shadowy and ill-defined enemy force with global reach.
(H/t Weasel Zippers).

The Atlantic also has an article that examines and rejects the notion that a "secret" court could be used to issue decisions approving a drone killing before the fact. It notes:
Washington's idea of the week is a secret court, based on the Foreign Intelligence Surveillance Court, which issues secret wiretap warrants in certain espionage cases. Executive officials would go before the drone court and present their evidence that an individual abroad, perhaps a U.S. citizen, is an Al Qaeda affiliate and an imminent danger. Judges on the panel would issue, in effect, a secret death warrant—a certification that lethal force can be used against the "enemy combatant."
Sen. Dianne Feinstein spoke favorably about the idea at confirmation hearings for C.I.A. Director-designate John Brennan. So did former Defense Secretary Robert Gates. Thursday, the New York Times joined in the chorus.
Americans love courts and judges. But they trust them because, in our system, they are independent of elected officials—not part of the political machine. They are also what lawyers call "courts of limited jurisdiction." In carefully chosen language, Article III of the Constitution extends "the judicial power" of the United States to a specific and limited set of "cases and controversies." Federal courts decide cases; they do not fight wars, collect the garbage, or set health-care policy. And most particularly, they may not become an advisory agency of the executive branch.

The idea of a "drone court" would send federal courts into areas they have never gone before, and indeed from which, I think, the text of the Constitution bars them. It could also put the integrity of our court system at risk.
Read the whole thing.

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