Wednesday, March 6, 2013

On Drones, Due Process and U.S. Soil

Could Have Used Some Drones in 1794
       Some, including Senator Rand Paul of Kentucky, are taking issue with Attorney General Holder's claim that the President may lawfully employ drones to attack American citizens if such individuals pose an imminent military threat against the United States.  Indeed, Senator Paul has gone so far as to begin a filibuster against John Brennan, President Obama's nominee for CIA Director, saying he will only relent if President Obama promises never to employ drone strikes (or, presumably, other lethal force) on American citizens on American soil.  According to the Senator:

       "The U.S. Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening, it is an affront on the constitutional due process rights of all Americans."

       Speaking of his planned filibuster, Senator Paul said:

     "I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court."

     Senator Paul has also said "I will not let [President] Obama shred the Constitution."

     At the outset it should be noted that a drone strike against an American citizen who has joined Al Qaeda would not be a unilateral executive action.  Instead, as previously explained on this blog, Congress has authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." (emphases added).  This legislation does not empower the President to "arrest and charge" members of Al Qaeda.  Instead, the resolution, entitled the "Authorization to Use Military Force," authorizes him to use "force."  Moreover, the legislation does  not require or contemplate that the President will hold a hearing before using such force.  Instead, it empowers the President himself, and not a judge or jury, to "determine" which individuals fall into the relevant category. In short, Congress, which possesses the power to authorize war, has granted the Commander-in-Chief plenary power to employ the nation's military assets against a defined enemy.  In these circumstances the President's  "authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.  In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty."  See Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1953) (Jackson, J. concurring).   
     To be sure, such power is not unlimited but is instead still subject to independent constitutional limitations. Thus, Congress could not, for instance, empower the President to use military force against all American Presbyterians because it believes that religion to be false.  Nor could it authorize the President to round up and detain all Muslims because most if not all members of Al Qaeda profess to be Muslims.  However, Congress has done no such thing in this case.  Instead, Congress has authorized the use of force against a foreign-based organization that attacked the United States in 2001, an attack that was the culmination of a war, documented by the 9-11 Commission Report, that the organization launched against the United States during the 1990s.  That war, it will be recalled, included bombings of two U.S. Embassies, the Khobar Towers in Saudi Arabia, and the U.S.S. Cole in Yemen; each attack killed several Americans.  The 9-11 attacks killed over 3,000 people.  Congress could have, if it wished, done nothing, doubling down on the pre-9-11 policy of responding to Al Qaeda's war against the United States with the same tactics employed against the Mafia, that is, wiretaps, warrants and indictments.  In the same way, Congress could have ignored Hitler's declaration of war against the United States while FDR sought warrants for Hitler's arrest.   However, Congress chose a different approach, as it was entitled to do.  That's why President Obama employed a Seal team, and not an extradition order, against Osama Bin Laden, and, as previously explained on this blog, properly so.

     With all due respect to Senator Paul, the Constitution, including the Fifth Amendment,  imposes no per se ban on the use of lethal force, whether via drones, B-52s, or muskets, against American Citizens on American soil.  Recall that the President and Attorney General Holder have contemplated only attacks against Americans who, hypothetically, join Al Qaeda and assist it     By its terms, the Due Process Clause applies to all "persons," and not just American citizens.  Thus, if the Clause requires a judicial hearing before the use of force against an American assisting foreign invaders, then it would presumably require such a hearing before using force against the foreign invaders as well.  Such a result, however, would produce strange results indeed.  The United States Navy was entitled to depth charge Japanese submarines operating in Pearl Harbor on the morning of December 7, 1941 instead of seeking warrants for the submariners' arrest.

    Moreover, and as previously explained on this blog, the Constitution itself expressly contemplates such a use of force.  That is, Article I, Section 8, cl. 15 empowers Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions."  (emphases added)  The second contemplated use of the militia --- to suppress insurrections --- necessarily entails the use of military force, without trial in Civilian Court, against American citizens who are attacking the United States.  This power is not hypothetical or dormant.  As Jack Goldsmith has explained, Congress exercised this power at the dawn of the Republic, empowering the President in 1792 to call forth the militia when necessary to put down insurrections or repel invasions.  As previously explained on this blog, President Washington did exactly that in 1794, when he called forth the militia to suppress the so-called "Whiskey Rebellion" in Pennsylvania.   Had the rebels resisted federal authority, as they had done before Washington gathered the militia, the army that Washington led could have "shot first and asked questions later" instead of placing the rebels under arrest.  This contemporaneous construction of the Constitution, by the same Congress that proposed the Bill of Rights, including the Fifth Amendment and its Due Process Clause, is powerful evidence that the use of military force against American citizens on U.S. soil is sometimes lawful.    Abraham Lincoln and U.S. Grant apparently agreed.

  There is no reason in law or logic to treat Americans who attempt to assist an Al Qaeda attack on the U.S.A. any differently from those who instigated the Whiskey Rebellion or fired on Fort Sumter.  Such individuals are taking part in an "invasion" of the United States within the meaning of the militia clause, and Congress can surely authorize the President to use the standing Army, and not merely the militia, to repel such invasions.  As Jack Goldsmith has said in the same recent post cited above:

  "[T] he President could invoke the AUMF if a U.S. citizen al Qaeda member were in the midst of an attack on the homeland.  Imagine, for example, a repeat of 9/11 where there is a known U.S. citizen in the cockpit; the President could rely on the AUMF, in addition to Article II, in meeting that attack.  And he could use drones if he wanted (though Congress could, if it wanted, restrict their use)."

   Mike Ramsey, another expert on the scope of the war powers, has expressed agreement with Goldsmith, albeit on somewhat different grounds.  See here
   By contrast, Senator Paul and others who share his position would apparently have the military "stand down" in the face of such an attack because an American citizen is behind it.  In my view, Professor Goldsmith plainly has the better of this argument.  While Senator Paul's commitment to the Bill of Rights is commendable, the Constitution is not a suicide pact.