The United States Department of Justice claims the President has power, under the Constitution, to use drones to kill American citizens. According to a survey in June 2012 by the Pew Research Center, sixty two percent of Americans polled approve of the President's use of drones to kill American citizens. What follows is the relevant text of a memorandum written by Justice Department lawyers offering a legal argument why the Constitution is not violated by the President when he kills American citizens by drone.
"The President has authority [to kill American citizens] arising from his constitutional responsibility to protect the country, from the inherent right of self defense recognized by international law, and by the Congress's authorization of the use of all necessary and appropriate military force against the enemy, and the existence of an armed conflict with Al-Qa'ida under international law."
"Were the target of the President's drone attack an American citizen, though the citizen may have rights under the Due Process Clause and the Fourth Amendment, his status as a citizen would not protect him from the President's kill order. The citizen's constitutional rights must be balanced against the Government's interest in eliminating what it perceives as a threat of violence to other Americans that arises from an individual who is engaged in plotting against the Government."
The basis for the Justice Department
lawyers' argument, they claim, can be found in the United States Supreme Court
decision in Hamden v. Rumsfeld 548 U.S. 557 (2006) and Hamdi
v. Rumsfeld 542 U.S. 507 (2004) . Neither Hamden nor
Hamdi, however, had anything to do with the issue of whether the
President has constitutional power to kill American citizens simply because he thinks
they deserve killing. In Hamdi, the question decided was whether
Hamdi, born in Louisiana and captured on the battle field in Afghanistan, could be characterized as an "enemy combatant" and thus subject to
the President's power to detain him. Nothing in the decision of
the case supports the Justice Department lawyers' argument that the President
might kill him. In Hamden, the question decided was
whether Hamden, a foreign national—a one time chauffeur for Osama Bin Laden,
captured in Afghanistan—could be tried by U.S. Military Commission.
See More from Joe Ryan on the Supreme Court’s Failure To Support Liberty Over Security
Seizing upon these two cases, the Justice Department lawyers spend almost sixteen pages attempting to cram into the cases' holdings their theory of the President's constitutional power to kill American citizens without recognizing their right to be read an indictment against them, confront their accusers, and be tried by a jury of their peers.
The Justice Department lawyers' memorandum goes on:
"Certain aspects of this legal framework require additional explication (really?)
First, the condition that an [American citizen] present an `imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will [in fact] take place in the immediate future. Given the nature of terrorist attacks. . . this definition of imminence. . . would not allow the United States sufficient time to defend itself. . . Thus, a decision-maker determining whether [an American citizen] presents an imminent threat of violent attack against the United States must take into account that certain members of Al-Qa'ida are continually plotting attacks. . . and thus cannot be confident that none is about to occur."
Note: What "condition" are these lawyers talking about? There is no "condition." The only "conditions" are that the Government present the American with an indictment, allow the American access to a lawyer so that he may confront the Government's witness against him, and the action the Government claims it has against him be tried to a verdict by a jury of his peers. What is it that the American people don't understand is happening here?
So what are the factual predicates required before this "decision-maker" can make a decision whether to kill an American citizen?
"A high-level official could conclude, for example, that an [American citizen] poses an `imminent threat' of violent attack where he is [presumed to be] an operational leader of al-Qa'ida or an associated force (whatever that means) and is personally and continually involved in planning terrorist attacks against the United States."
Oh, you see it, don't you? Hamden, the chauffeur of Bin Laden, had he been an American citizen, was thus involved in Bin Laden's planning of the September 11 terrorist attack on One World Trade Center and the President had the constitutional power, not only to detain him but to kill him.
"Second, capture could not be feasible if the relevant country (Yemen, Pakistan, France, Syria etc) were to decline to consent to a capture operation."
Let's see if we can get the argument of these lawyers straight. A "high-level official" concludes (without any judicial review) that an American citizen residing in France is somehow "involved" with "an associated force" of al-Qaida presumed to be "plotting" against the United States, and the Government of France disagrees and, thus, refuses to allow the CIA to sneak in, capture the suspect, and carry him away to a cell somewhere. In such a case the Constitution, the Justice lawyers argue, authorizes the President to throw a drone at the house in which the suspect—with God knows who else—lives. And sixty two percent of Americans polled agree with this? Really?
"Third, it is a premise here that any such lethal operation by the United States would comply with the four fundamental law-of-war principles governing the use of force: necessity, distinction, proportionality, and humanity. (Huh? These guys are making this stuff up as they go.)
And now, on the basis of their argument, the lawyers leap to the conclusion. Here it is, wait for it!
"In sum, an operation in the circumstances and under the constraints described above would not result in a violation of any due process rights."
Section 1119(b) of Title 18 of the United States Code provides that, "a person who, being a national of the United States, kills or attempts to kill a national of the United States while that national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111 et seq of title 18." One might reasonably expect that when the Government's "high-level official" orders the death of an American citizen living abroad, he is subject to judicial punishment under this law. Not so, the Justice Department lawyers tell us. Why? Because the statute in question applies only to "unlawful" killing, and as the lawyers explain with their bullet points above, the murder of an American citizen presumed to be somehow plotting against the United States is not "unlawful." The tail is wagging the dog, here. But, according to the Pew poll you don't care, it's not your father, mother, brother, sister, or children the "high-level official" has just killed.