The Constitutionality of Drones

Stephen Colbert opined in May 2012, that President Obama prefers to kill terrorists by targeted drone strikes instead of apprehending them, thus avoiding complications with detention. “It’s brilliant,” Colbert said, “[h]e doesn’t have to worry about habeas corpus because after a drone strike sometimes you can’t even find the corpus.” 

On September 30, 2011, a drone missile struck a house in Yemen killing American terrorist suspect Anwar Al Awlaki. Awlaki was born in New Mexico. He was never charged with any crime and no judge approved of the drone strike that killed him.

In a recent interview with Bill Moyers, former CIA agent and lawyer Vicki Doval said that under US law, Awlaki’s cell phone had more protections than Awlaki’s life. She explained that if the US wanted to eavesdrop on Awlaki (a US citizen in a foreign country), the government requires judicial approval under the 1978 Foreign Intelligence Surveillance Act, but to kill the man, no such approval is necessary.

President Obama argues he has the power – as Commander-in-Chief – to authorize the execution of persons that he determines pose a threat to the US without affording his targets any judicial review whatsoever.

Article II, § II of the Constitution states “[t]he president shall be Commander in Chief of the Army and Navy of the United States.” However, Article I, § 8 vests the power to declare war in the Congress. Congress passed the Authorization for the Use of Military Force (AUMF) to invade Afghanistan in September 18, 2001, just seven days after the terrorist attacks on 9/11.

The AUMF states: “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.”

The President also argues that his drone policy does afford suspected terrorists with a standardized and legal process to determine if the targets meet the minimum requirements to warrant targeted execution.

On February 5, NBC national security reporter Michael Isikoff broke a story about a leaked 16-page Justice Department “White Paper” that purportedly justifies Mr. Obama’s legal rationale for targeted drone killings of “high value” enemy targets. The still-classified 50-page memo grants the President and possibly other “senior administration officials” the power to target and kill suspected terrorists even if they are US citizens.

In opposition to the government, the American Civil Liberties Union (ACLU), argues that drones – when used against US citizens – are unconstitutional because they deprive targets of their right to be notified of the charges against them, the right to a trial, or even the right to a modicum of judicial review.

Due process is a fundamental Constitutional right enjoyed by every American citizen. The idea – that suspected wrongdoers are notified of the charges against them and given the opportunity to contest the charges – is rooted in the Magna Carta and in our Bill of Rights.

ACLU lawyer Hina Shamsi said Obama’s standard for determining drone targets is “vague, elastic, and allows the killing of citizens who pose no imminent threat [to the US].” She also argues that many targeted drone killings, including the strike on Awlaki, are possibly illegal because they take place far from any battlefield in places like Yemen, Pakistan, and countries in northern Africa (where no war has been declared).

In Fall 2011, after information about the drone memo first leaked, the ACLU and the New York Times (NYT) filed Freedom of Information Act (FOIA) requests in Federal District Court in New York to force the government to produce documents providing the legal justification for the drone program.

The government argued that drone warfare, as a military tactic, is a political question reserved solely for the executive branch under the Constitution and is therefore not reviewable by American courts. In January, the government’s argument won and the legal rationale for Obama’s drone program remains a secret.

Judge Colleen McMahon ruled in part: “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws…” She then granted the government’s motion for summary judgment.