Thursday, March 21, 2013

Rand Paul's Effort to Overregulate Drone Use


Lethal (and regulated?)

Very Lethal (but not regulated)

Extremely Lethal (still not regulated)

    A previous post documented Senator Rand Paul's claim that the Due Process Clause of the Fifth Amendment absolutely proscribes the use of lethal military force, even when expressly authorized by Congress, against American citizens who have joined with foreign enemies to attack the United States on American soil.  For instance, in a March 5 statement still posted on the Senator's website, Senator Paul criticized Attorney General Holder for recognizing the possibility that the President could employ military force against American citizens on American soil in extraordinary circumstances.

"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 the Constitutional due process rights of all Americans."

     This statement "speaks for itself" as a condemnation of any and all drone strikes against American citizens on U.S. soil. 

     Senator Paul has now changed his tune somewhat, abandoning his unqualified opposition to the use of force against U.S. Citizens on U.S. soil.  Instead, the Senator now simply opposes the use of military force against non-combatants on U.S. soil, a use this Administration has never, so far as this blogger is aware, contemplated.   In other words, Senator Paul now apparently agrees with the Obama Administration, highly regarded experts (see here and here), and this blogger that Congress may authorize the Commander-in-Chief to employ lethal force against American citizens on American soil in some circumstances. 
    Indeed, Senator Paul's conversion is so complete that he, along with Senator Ted Cruz, have authored proposed legislation that recognizes the President's authority to employ drones, such as the MQ-9 Reaper pictured above,   in certain circumstances.  In particular, the operative portion of the proposed legislation provides as follows:

        "The Federal Government may not use a drone to kill a citizen of the United States who is   located in the United States. The prohibition under this subsection shall not apply to an individual who poses an imminent threat of death or serious bodily injury to another individual. Nothing in this section shall be construed to suggest that the Constitution would otherwise allow the killing of a citizen of the United States in the United States without due process of law."

         Such legislation apparently codifies limits that, according to Senators Paul and Cruz, the Due Process Clause imposes on the President's ability to use drones against American citizens on U.S. soil.  Moreover, this legislation certainly reflects an improvement over Senator Paul's initial position that any and all drone strikes on American soil violate the Due Process Clause.  At the same time, in the opinion of this blogger, this legislation overregulates the President's use of drones, suffering as it does from three defects.

         First, by limiting such strikes to instances in which there is "imminent threat of death or serious bodily injury," the legislation unduly restricts the President's ability to employ drones against enemy combatants.  After all, not all combatants ipso facto pose an imminent threat of death or serious bodily injury to other persons at all times.  Consider, for instance, thousands of heavily-armed American citizens who, perhaps in league with foreign powers, launch an insurrection from a state in the Midwest and march towards Washington with the announced intent of toppling the national government.  Must the President wait until the rebels, who are assuredly combatants once they take up arms, are close enough to pose an imminent threat to Washington to strike the insurgents?   The legislation mandates such Presidential dithering, contrary to Senator Paul's apparent concession that striking such combatants would not violate the Due Process Clause.   That Clause does not prevent the President from choosing the battlefield and taking the fight to the enemy before it approaches its military objective.

     Moreover, what if such insurgents, instead of threatening imminent death or bodily harm, instead "mere" threaten imminent destruction of ammunition dumps, rail lines and air bases.  Must the President stand idly by or rely on civilian authorities to prevent such battlefield-creating destruction, if possible?   As Michael Ramsey has explained, historical practice establishes that, once an individual takes up arms and becomes a combatant, Due Process Protections simply do not apply.  (In Ramsey's own words, "[i]t was never thought in the eighteenth century that battlefield combatants had any sort of protection against being killed, even if they were citizens fighting against their own country, nor that combatants had to check the citizenship of their opponents before launching attacks.")  The Due Process Clause thus provides no such protection to individuals who have taken up arms against the United States and are actively engaged in battlefield combat, even if such combat consists solely of destroying military equipment or supplies.

       Second, the proposed statute applies exclusively to drones and thus does not prevent the President from using other weapons platforms, like the AH-64 Apache Helicopter and B-52 Stratofortress pictured above, on American soil.  This omission is ironic to say the least: the AH-64 and B-52 are more lethal than any drone the United States has deployed.   For instance, the AH-64 carries slightly more Hellfire missiles than the Reaper and also deploys a 30 mm chain gun.  Moreover, the B-52 Stratofortress can carry 70,000 pounds of bombs.   This blogger is not aware of any principle explaining why the Due Process Clause can prevent drone strikes but not carpet bombing.

     To be sure, the statute contains a proviso stating that the express prohibition on drone strikes does not thereby suggest that the "[c]onstitution would otherwise allow the killing of a citizen of the United States in the United States without due process of law." However, this is an awkward provision to say the least.  After all, as explained in a previous post on this blog, the September 18, 2001 Authorization to Use Military Force ("AUMF") itself authorizes the President to use force against Al Qaeda and its supporters.  Absent more detailed legislation to the contrary, then, the President is entitled to employ whatever weapons Congress has placed at his disposal, including B-52s and AH-64s, to execute the AUMF, including within the United States if necessary.  Moreover, in exercising this authority, the President has an independent duty to ascertain and adhere to any relevant constitutional limitations.   Thus, the legislative proviso quoted above subtracts nothing from the AUMF, leaving the President entirely free to employ non-drone lethal force when he believes that such a use of force comports with the Due Process Clause.  Hopefully the President would take a more pragmatic and historically-ground view of the limits imposed by the Due Process Clause and reject the sort of mechanical application of the imminence standard that the proposed legislation would impose on the use of drones.

        Third, if passed, the legislation would strangely leave the President less able than a local police department or individual state to counter insurrections by American citizens or combinations of Americans with foreign enemies.  After all, the statute applies only to the "Federal Government" and not the States or any subdivisions thereof.  Moreover, Article I, Section 10 of the Constitution allows the States to employ military force when necessary to repel invasions.  Finally, states retain vast police powers of the sort necessary to maintain law and order within their borders.  (See U.S. Constitution, Amendment X).  Thus, as written, the current draft legislation would leave states perfectly free to employ drones against Americans who side with foreign enemies against the United States.    Of course, states must comply with the 14th Amendment's Due Process Clause.  However, as explained above, due process constraints do not prevent states or the national government from employing military force against combatants before such combatants pose an imminent risk of harm.

      Hopefully the Congress will reject the Paul/Cruz effort to overregulate the use of Drones.