The DRONES Diversion

Mark Tushnet is making a lot of sense here:

I’ve finally been driven bonkers by the quality of the discussion on the left about drone use against US citizens within the United States. OF COURSE it’s constitutionally permissible for executive officials to take actions against a US citizen on US soil that either (a) predictably will lead to the citizen’s death or (b) are intended to kill the citizen. (Drones are completely irrelevant to the constitutional question. Snipers using rifles raise the same question. And, in this post I’m talking only about the Constitution; there are statutory limitations on who can do the killing — for example, not the CIA — but I’m not going to deal with them.) The only interesting questions, and they aren’t all that interesting, deal with when it’s constitutionally permissible to do so — and, secondarily, with what processes do the officials have to go through before they take the action.

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So, why hasn’t the Obama administration said what I just did? Well, first of all, I think it has, when you put together all the statements they’ve made. They’ve talked about imminence, for example, in ways that make it clear that they’re defining imminence in relation to the ability to arrest (or capture, when dealing with questions about terrorists outside the United States). Second, the more sophisticated critics have said they their primary concern is transparency, that they don’t know the circumstances under which the administration believes it wouldn’t violate the Constitution to target a US citizen on US soil. But, I doubt that the administration could fairly say more than something like this: “We think we can target people after we’ve done our damnedest to assure ourselves that the targets do in fact pose an imminent threat to domestic security, and when we’ve done the best we can to rule out the possibility that we can stop them by arresting them in circumstances where there’s a relatively low probability of doing so safely.” Ask for more than that, and all you’ll get is, “Circumstances vary so much that we can’t say anything more precise.”

I would qualify the last paragraph a little bit. While I agree that answer is implicit in past statements of the Obama administration, given some of the more radical claims of the past administration (particularly with respect to the constitutionality of statutory limits) asking for an explicit answer is a good idea. But Tushnet is right that a categorical denial of the ability of the executive to use violence without due process against American citizens on American soil is obviously impossible, not least because the use of violence by the executive branch without due process is sometimes legitimate in the use of ordinary police powers. And certainly, the use of “drones” is beside the point; the precise mechanism of violence is not a constitutional issue and generally will not be an issue of moral significance. (For similar reasons, I must confess to being unclear why the use of small drones for surveillance is in itself any scarier than, say, helicopters, or having a cop in a squad car tailing a suspect.)

When applied outside of American soil, there are more serious issues, and the questions of what constitutes an “imminent” threat and (to a lesser extent) the conditions under which capture is unfeasible are not merely academic — there’s good reason to believe that there have been extrajuridical killings of people who don’t meet the first criterion, and the process is plainly inadequate.  But, again, the relevant question is the process for defining legitimate military targets, not the use of drones (as opposed to conventional weapons). And I would add again that the question of American citizenship is beside the point; violence can be used in some circumstances against an American who is a military target, and should not be used against a non-American who isn’t.