Department of Justice’s lawyers are doing a shoddy job of justifying drones and ‘kill list’

opinion@dailylobo.com

A recently leaked Department of Justice document gives new insight into the legal precedents backing up the Obama administration’s use of drones to target U.S. citizens operating as terrorists.

However, instead of providing a reassuring justification for the controversial program, the document further clouds the questionable nature of the drone strikes and their constitutional basis.

These new legal justifications for the Obama administration’s drone program and “kill list” use both Fifth Amendment due process-based arguments and Fourth Amendment probable cause and seizure arguments. This distinction is important to make because of the fundamentally different interpretation of the war on terror that each gives. The Fifth Amendment arguments justify the drone program as a wartime power, whereas the Fourth Amendment arguments justify it under the purview of peacetime law enforcement.

The Obama administration’s Fifth Amendment argument is grounded in the 2004 case Hamdi v. Rumsfeld, though in a very roundabout way.

In Hamdi, the U.S. Supreme Court ruled that Hamdi, an American citizen working as a terrorist and captured in Afghanistan, was still a citizen and therefore entitled to due process rights, despite being considered a detained enemy combatant. The Bush administration made the losing argument that the government could take away the rights of the individual in order to act swiftly in favor of the greater national interest. Strangely enough, it is this balancing test, with which only one of the nine Supreme Court justices agreed, that the Obama administration uses to make its case.

The Obama administration transfers the Hamdi precedent to the current situation, even though it deals with detained combatants, not those out in the field. It uses the Bush administration’s failed balancing test to justify the killing of an American citizen who poses an “imminent threat” to the United States, and whose capture is “unfeasible” or would pose an “undue risk” in terms of American lives. The extremely vague nature of those three legal terms aside, the Obama administration concludes that the violation of due process is justified if it is too dangerous or too difficult to pour resources into capturing an American citizen-turned-terrorist. Essentially, the idea is that the national interest is served by removing the person who is a threat to the U.S., and the most efficient and safest way to do that is to kill them, not capture them.

By contrast, the Fourth Amendment argument put forth in defense of the drone program involves a series of precedents that until now have only been used in a domestic law enforcement context. The cases involved, such as Tennessee v. Garner from 1985, justify the use of deadly force to “seize” a suspect’s life when stopping a suspect if the officer involved has probable cause to believe the suspect poses a significant threat of death or serious physical injury to the officer involved and any bystanders. The precedents presented in the document make the case that a drone strike against a U.S. citizen-turned-terrorist is the same type of situation. Thus, as long as the U.S. government has probable cause to assume this U.S. citizen is a significant enough danger to U.S. citizens back home, his or her Fourth Amendment rights against unreasonable seizure can be violated — once again, in the name of the national interest.

It seems that the Obama administration must choose either one constitutional argument or the other in order to justify its use of drones against American citizens. The war on terror can’t be both a war and a law enforcement operation at the same time.

However, focusing on that alone ignores the larger issue, which is that both legal justifications are extremely tenuous and appear to be untenable in court.

The due process argument uses a test that was defeated in the Supreme Court before and is unlikely to win it over in a second challenge, despite there being new justices. The seizure argument, while previously upheld in court, completely contradicts the commonsense view that the war on terror is indeed a war, because the seizure argument is a law enforcement precedent. Also, it is very hard to think of a U.S. citizen-turned-terrorist in Afghanistan in the same way as a citizen who is an armed and dangerous criminal running around a town center.

It is time for the Obama administration to come to terms with the fact that its policy of drone strikes against U.S. citizens lacks a coherent constitutional justification, and it should stop trying to defend the program in that way. If the Obama administration simply must continue its drone strikes against U.S. citizens-turned-terrorists — which many would argue against — then it should look elsewhere for legal justification.