White Paper Suggests U.S. Could Launch Drones Into U.S. Cities
The government insists that its legal analysis applies only outside the U.S., but Kal Raustiala begs to differ.
President Obama’s deep embrace of drones as a tool against terror was thrust into the spotlight last week by the release of an official “white paper” detailing when, and why, the federal government could intentionally kill American citizens. Many have found the whole idea of targeting Americans for death abhorrent; the analysis has been called “chilling” and full of “twisted definitions.”
The government’s white paper declares that the Constitution doesn't protect citizens who act as senior leaders of al Qaeda from death from above. That, and the idea that judges have no real role to play in the targeting process, has generated substantial concern about an unrestrained and trigger-happy executive branch—one that has killed some 3,000 individuals via drone strikes since the 9/11 attacks.
But one aspect of the white paper has received less attention than it should. The document repeatedly states that its analysis applies only to an American killed abroad. The analysis seems to assume a strike akin to that involving Anwar al-Awlaki, an American al Qaeda member killed in September 2011 in Yemen by a U.S. drone.
But why stop there? Despite the government’s insistence that it is talking only about strikes abroad, could al-Awlaki have been targeted if, instead of Yemen, he was in Yonkers?
The answer seems to be yes. In fact, there is nothing in the white paper’s legal analysis explaining why it is only permissible to kill a citizen abroad. To the contrary, the thrust of the analysis points to the conclusion that the location of the strike doesn’t actually matter. As long as the other requirements are met—such as the individual being a senior al Qaeda leader whose capture is “infeasible”—Albuquerque is no different from Abbottabad.
How is this possible? Let’s assume for the sake of argument that the white paper’s overall legal approach is broadly correct—in other words, put aside all swirling debate over “imminence” and “due process” and assume that the smart lawyers at the Justice Department basically have it right.
The reason that it doesn’t matter where the target (read: American citizen) is located is one that liberals ought to love. As far as citizens are concerned, the Constitution really doesn’t discriminate by geography. The constitutional rights of Americans don’t get checked at the jetway door; they are more or less the same abroad as they are at home. So as long as a lethal strike passes muster in constitutional terms, the location of the target is immaterial.
This principle—that the Constitution's protections follow Americans wherever they go—is relatively new. For most of our history, the Constitution was thought to apply only within U.S. borders. If the federal government acted against Americans abroad or on the high seas, in most cases it could do what it wanted. For example, the U.S. was able to operate courts that violated basic constitutional principles in places like Shanghai—which until 1943 had one such federal court with jurisdiction over Americans living in China.
It took the Cold War, and the massive forward deployment of U.S. troops and their dependents that followed, to change this. With hundreds of thousands of Americans now based abroad, the principle that an American’s constitutional rights stopped at the border came under increasing stress.
In a 1957 case involving two civilian wives accused of murdering their service-member husbands, the Supreme Court declared that the Bill of Rights no longer stopped at the water’s edge. “We reject the idea,” the justices wrote, “that when the United States acts against citizens abroad, it can do so free of the Bill of Rights.”
So whether a drone strike that kills a citizen comports with due process or not has essentially the same answer if the target is in Toronto or in Detroit. Sure, a senior American al Qaeda operative hiding inside the U.S. could probably be far more “feasibly” captured than one hiding in Yemen. And, of course, the political calculus of using American military forces to fire missiles at U.S. cities and towns is another matter. But there is no legal reason the operative could not be killed during a difficult capture attempt, wherever he might be.
Nor, given the premises of the white paper, is it obvious why capture would even have to be attempted. If, as the executive branch states, the U.S. is involved in an armed conflict with al Qaeda, killing enemy operatives—regardless of their citizenship—is perfectly legal. Just as Americans fighting for the Confederacy were killed in the Civil War without any requirement to attempt capture first, so too can Americans fighting for the enemy be killed in this war. Of course, this only begs the question of whether we are actually at war—and if so, what war means when it is waged against a shadowy and ill-defined enemy force with global reach.
All this has one significant caveat: the white paper, while quite detailed, is just a white paper. The underlying legal opinion has not been publicly released. Perhaps the secret legal opinion justifies a distinction between killing Americans at home or abroad. But it would be quite strange if the white paper chose to leave out the legal basis for one of the key limiting factors it describes.