It’s
striking, but not surprising, how quickly the conversation moved from using
drones to target American citizens abroad (e.g. al-Awlaki), to domestic drones,
to using domestic drones to target American citizens on US soil (i.e. Eric
Holder’s recent letter to Rand Paul).
A few
quick reactions:
i) Some
hawks (e.g. Andrew McCarthy, John Yoo, Charles Krauthammer) have defended a
president’s authority to target Americans abroad without due process. One
off-cited comparison is the civil war, where Union soldiers killed Confederate
soldiers. But there are two potential problems with that comparison:
a) There
are intelligent Americans who don’t think the Federal gov’t ever had the legal
authority to wage war on the South. They think states of the Union have the Constitutional
right to secede.
Now, I’m
not going to debate the pros and cons of that argument. My point is simply that
when some hawks cite the civil war as precedent, that’s a legal premise that
the opposing side doesn’t necessarily grant. The comparison only works if both
sides concede the comparison.
b)
Moreover, even if we grant the comparison, Confederate soldiers were
combatants. By contrast, some hawks are defending the authority of the
president to target American noncombatants abroad.
Now, the
distinction between combatants and noncombatants is often morally
inconsequential. I’m not saying it’s intrinsically wrong to kill a
noncombatant. I’m just considering the hawkish argument on its own terms. The
comparison breaks down.
ii) In
addition, a stated rationale for targeted Americans abroad without due process
is because it’s not feasible to conduct impromptu trials on the battlefield.
However,
whatever the merits of that argument, that same argument cuts against targeting
American citizens on American soil without due process.
iii)
Now, it might be argued that law enforcement does that the authority to kill
American citizens without due process. For instance, isn’t that what happens
when police get into a shootout with bank robbers?
a)
However, doesn’t that involve a basic difference between local authorities and
Federal authorities? Between soldiers and policemen?
b)
Perhaps that line blurs in the case of ATF and the FBI. Mind you, Ruby Ridge
and the Waco siege illustrate the problems when that line is blurred. Of
course, the 1985 MOVE bombing in Philly is an example of how badly local
authorities can botch a law-enforcement operation.
iv)
Holder has since backtracked on his original statement. But if the Obama
administration did intend to use domestic drones to assassinate American
citizens on American soil, we really wouldn’t expect the administration to
publicly announce its intentions. In an unguarded moment, Holder said what the boss really thought.
In
addition, this issue touched a raw nerve because the Obama administration has
already earned our distrust with its naked totalitarian impulses.
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