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.


      

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.

Update:

   

On the Legality of Congressionally-Authorized Drone Strikes

Understood the Nature of Wartime "Due Process"

In a house editorial today the New York Times criticizes President Obama for what it calls "unilateral" decisions to kill terrorists "without the consent of someone outside his political circle."  According to the Times:

"No one in that position [a President running for re-election] should be able to unilaterally order the killing of American citizens or foreigners located far from a battlefield — depriving Americans of their due-process rights — without the consent of someone outside his political inner circle. . . . .It is too easy to say that this is a natural power of a commander in chief. The United States cannot be in a perpetual war on terror that allows lethal force against anyone, anywhere, for any perceived threat. That power is too great, and too easily abused, as those who lived through the George W. Bush administration will remember."  President Obama, the Times says, believes that "the shadow war on terrorism gives it the power to choose targets for assassination, including Americans, without any oversight."

The Times editorial follows other "Progressive" commentary critical of the President's use of drone strikes to kill suspected terrorists.

The Times and other Progressives are wrong on at least three counts.  First, there is no indication that the Obama Administration is claiming the right to kill any and all purported "terrorists."  Instead, all published reports indicate that the Administration is targeting members or affiliates of Al Qaeda, the organization responsible, by its own admission, for several attacks on the United States, and an organization that has not surrendered to the United States.   Thus, any "war on terror" is in fact a "War on Al Qaeda."   Second, neither President Obama, nor President Bush before him, initiated this war "unilaterally."  Instead, both have simply carried out the will of the people as expressed by the Congress of the United States shortly after the September 11 attacks.  Third, drone strikes that kill individuals the President believes to be members of Al Qaeda do not violate "due process."

Congress could have responded to the September 11 attacks by authorizing more aggressive law enforcement activity, whereby the FBI would arrest (or attempt to arrest) suspected members of Al Qaeda for trial in U.S. Courts.  Instead, and as previously explained on this blog, Congress rejected the "law enforcement" approach taken during the 1990s, an approach which had failed to prevent numerous terrorist attacks on the United States and its interests.  That is, Congress, on September 18 2001, exercised its war powers and passed the "Authorization to Use Military Force," ("AUMF") reproduced in full below.   That Resolution empowers the President, as "Commander-in-Chief of the Army and the Navy of the United States," to employ "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."   As previously explained on this blog, the AUMF contains no geographic limitation, but instead authorizes the President to employ "force" against any individual that "he determines" (without any requirement of additional process) to be in the identified class, whether or not they are on or near any battlefield.  (In the same way, the December 9, 1941 Declaration of War against Germany contained no such geographic limitation.)  Nor does the AUMF purport to immunize from attack American citizens who join Al Qaeda.    So far as this blogger is aware, no one has alleged that either President Obama or President Bush has targeted individuals, even suspected terrorists, outside the class identified in the AUMF.  President Obama no more needs "outside consent" for such strikes than FDR needed such consent before ("unilaterally") ordering the invasion of France.

To be sure, one can imagine scenarios in which  a hypothetical President abuses and exceeds the power that Congress has granted, whether the AUMF or the formal Declaration of War against Germany.  However, as Joseph Story explained nearly two centuries ago, the fact that a power may be abused is no argument against it.  So long as the President merely exercises the authority that Congress has granted him, suspected members of Al Qaeda have received all the "process" they are due.  As Colonel Kirby (pictured above), played by John Wayne noted in the Green Berets "[o]ut here, Due Process is a bullet."  Today he might add "or a Congressionally-authorized drone strike."

Update (June 1, 2012).  Two comments take issue with my assertion that Congress may authorize military force against American citizens whom the President determines have taken up arms against the United States.  I appreciate the opportunity to provide some additional elaboration on my views.

1.  The Due Process Clause does not distinguish between American citizens and other "persons." In any event, the Constitution itself apparently contemplates the use of military force against American citizens.  Article I, Section 8 empowers Congress to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions." (emphasis added)   Suppression of an insurrection can entail the use of lethal force, without a pre-deprivation hearing, against citizens who have taken up arms against the United States and participated in the insurrection.  President Washington suppressed such a (short-lived) insurrection in 1794 --- the so-called "Whiskey Rebellion" --- exercising the authority to employ the militia for this purpose that Congress had granted him in the Militia Act of 1792.  President Lincoln suppressed a rebellion from 1861-65, and he ordered an invasion of several Southern states to do so.  In my view, an American citizens who joins the army of a foreign power is, as a constitutional matter, indistinguishable from an American citizen who joins a domestic insurrection.  

2.  The conduct of war necessarily requires military commanders and soldiers to distinguish between combatants and non-combatants.  This is true whether the soldiers are suppressing an insurrection at home or invading an enemy abroad.  That is, they must "determine" (the language employed by the AUMF) whether various individuals are members of rebel forces (if at home) or enemy forces (if abroad).  When Admiral Halsey ordered American fighters to shoot down an aircraft on April 18, 1943, he did so because he "determined" that the plane was transporting Japanese Admiral Yamamoto.   He was right, and the mission was successful.  If he had been mistaken and the fighters had destroyed a civilian aircraft, that would have been a tragedy.  However, the possibility of such a wartime tragedy does not in my view mean that the attack deprived Admiral Yamamoto of due process of law.  Nor would such a mission have contravened due process if instead Halsey had targeted a fictitious American Admiral Murphy because he "determined" that Murphy had gone over to the enemy and thus chosen to wage war on the United States.  (Imagine if, during World War II, thousands of Americans had fled the country and enlisted in the German Army.  Imagine further that Germany had formed a division from these soldiers and deployed them to defend Normandy.  Surely President Roosevelt could still order an invasion of Normandy without some sort of judicial hearing beforehand.)

3.   As noted in my initial post, any President could abuse the power granted by the AUMF.  President Obama could, for instance, decide to launch drone strikes on random American citizens or random citizens of other countries.  (He could also do this absent the AUMF, by the way.)  In the same way, President Roosevelt could have ordered the battleships of the Atlantic Fleet to shell American cities, claiming that such cities had sworn loyalty to Germany.   All of these actions would exceed the authority conferred on the President by the relevant statutes (the AUMF or the Declaration of War against Germany) and the Constitution.  That is to say, President Obama's hypothetical drone attack on American cities would not be the result of an actual "determination" that the targeted citizens were members of Al Qaeda.  Thus, such orders, if carried out, would be murder --- the unprivileged taking of a human life and thus subject to prosecution under the law of the state where the murder took place.

So far as I know, however, no one has asserted that the drone strikes ordered by President Obama do not rest on a good faith "determination" that the targeted individuals have joined Al Qaeda and taken up arms against the United States.

Here is the full text of the Congressional Resolution that the Times and others have ignored:

One Hundred Seventh Congress

of the

United States of America

AT THE FIRST SESSION
Begun and held at the City of Washington on Wednesday,
the third day of January, two thousand and one

Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized 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.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.