Let’s Talk About Drones

Wow. Drone policy has been in the news for like three days now. As in, the News news. On NPR. In the top of my Google News feed. In this conservative emailing list I accidentally got on. The “mainstream media” has spent more effort on drone policy this week than they did in all of the months leading up to last year’s elections.

It seems that eleven senators (both Democrat and Republican) threatened to delay the confirmations of Hagel and/or Brennan if the Obama administration didn’t release the memo(s) about their justification(s) for killing American citizens with targeted drone strikes. Then a 16-page memo “leaked” to NBC.

Page one of the memo (here from NBC, or here from Reason with selective highlighting) says that lethal operations against a U.S. citizen require, among other things, a “high-level official of the U.S. government” to determine that “the targeted individual poses an imminent threat of violent attack against the United States.”

Later, on page seven, the memo says that “an ‘imminent’ threat of violent attack” does not require the United States to have “clear evidence that a specific attack… will take place in the immediate future.” Yes, the government literally says that imminent does not mean immediate. This is pretty blatant doublespeak that basically gives the executive branch permission to target anyone they decide needs targeting.

This kind of stuff has been going on at least since the Obama administration tried to define “hostilities” as not including “firing missiles from drone aircraft” in Libya. (No wonder Obama has resisted the release of his memos in the same way he pursued the release of Bush’s!)

But what do you expect from a group that’s writing their own rules, without any oversight? That’s the whole point and problem. As Jacob Sullum at Reason says, “you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors…┬áIf mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.”

But why all this focus on U.S. Citizens?

Still, some may ask, why is this whole thing focused on the government’s right to target American citizens, as opposed to the government’s right to target people generally? Shouldn’t be focusing on how despicable and ineffective the drone strikes are instead of whether or not they should involve citizens?

Certainly, I believe there is a strong case that the drone strike policy is generally immoral, and probably ineffective, and that it should be severely restricted. (Here’s the latest from the NYT about a strike that took out a rising anti-al-Qeada cleric along with the bad guys.) In fact, there were similar arguments when senators tried to insert an amendment to the NDAA that said the government could not indefinitely detain American citizens; some were upset that it didn’t go far enough in limiting the practice for anyone.

Now I’m pretty sure that, in general, U.S. citizens have more rights under the U.S. government than non-citizens, or to put it another way, the U.S. government has more limitations on U.S. citizens than on non-citizens. Maybe that’s a false assumption, but I basically have this understanding that we pay taxes in return for the government guaranteeing us various rights, which include, along with freedom of speech and all of that, the right to not be “deprived of life… without due process of law.”

I’m not certain, but I’m pretty sure the Fifth Amendment doesn’t apply to random Pakistani tribal leaders in the same way that it applies to me. So while targeted drone strikes – or indefinite detention, for that matter, may be generally bad applied to anyone, they may also be even worse applied to U.S. citizens.

Of course, the whole non-conventional, non-state warfare makes all of this very complicated, and I’m not sure how to compare it to The Crimson Reach’s “WWI-era German-American who went home to go fight for the Kaiser.” If this hypothetical figure were a U.S. citizen now in the German army firing against American troops, I think he would legitimately have forfeited his rights to “due process of law.” However, if he was merely sitting in a German house eating a Kaiser roll and had been “recently” plotting with “associated” forces and we had a sniper across the street ready to take him out…. well, then I think that gets a little murkier, especially because in hypothetical situations we can “know” exactly who someone is and what they’ve been doing, but in reality it’s often a little less clear (a.k.a. the “Oops Cost”).

I’m not an expert on constitutional or international law, but it seems possible that U.S. citizens abroad have generally fewer rights and protections than U.S citizens in the United States, although it also seems possible that they still have generally more rights and protections than non-U.S. citizens abroad.

At a bare minimum, I think U.S. citizens deserve to know those differences and to be able to understand the limitations of those rights under different scenarios. It’s not at all clear to me that such an understanding is currently possible. In fact, it seems that the executive branch is determining its own limitations, and furthermore, that such limitations are inherently contradictory.

So while my thoughts on this are still evolving, and may even contain serious errors, I don’t think it’s fundamentally hypocritical to propose that the U.S. government should generally have even more restraint targeting U.S. citizens than targeting enemies generally, though I also might generally oppose the general targeting at the same time. Regardless, I think the targeting of U.S. citizens is inherently dangerous for anyone who does not believe in unlimited government, so no matter what I’m mostly just glad the issue is finally getting a little bit of the focus and attention it has long deserved.