Could The Federal Government Have Used A Drone To Kill Dzhokhar Tsarnaev?
Does the administration believe it has the legal right to use drones to assassinate Americans on U.S. soil? Sen. Rand Paul, R-Ky., stood on the Senate floor for 13 straight hours, demanding that the White House answer this question. Sure, some scoffed as though this were a rhetorical question. But in law, a rhetorical question today can make the difference between life and death tomorrow.
Enter Dzhokhar Tsarnaev, the admitted culprit behind the bomb at the Boston Marathon that killed three people and wounded scores more.
Part of the news cycle focused on Tsarnaev’s Miranda rights, but evidentiary questions are inconsequential compared to whether he could legally have been hit by a drone strike. And all of that is really a question of due process.
While the legal and constitutional questions at play in the Miranda question are fascinating, Miranda is a rule of evidence. It deals with whether the answers to questions posed to a person in custody can be used against him in court. Procedural rules of evidence, and how to characterize perpetrators of “terrorism” crimes against the sovereign rather than against individuals, are critical to due process.
Due process is a fundamental, constitutional guarantee that before the government acts to take away a person’s life, liberty, or property, government must give the individual: (1) fair notice; and (2) the opportunity to be heard. Due process has been fundamental to English common law since the Magna Carta, an agreement signed in 1215 that first codified the principle that authority derives from the consent of the governed. Due process is the bedrock of justice, but it takes a backseat to immediate threats.
The tension between due process and national security recently resurfaced with the leak of a Justice Department white paper. The drone memo outlined the legal framework for when the government can lawfully order lethal operations—drone strikes—against an American citizen who is not on a recognized battlefield but who is believed to be a “senior operational leader” or an “associated force” of Al Qaeda. (The memo was written with Anwar al-Awlaki in mind, but his name had been purged from the leaked version of the memo and replaced with more generic terms.) The Justice Department concluded that exerting lethal force without due process does not violate international or American law if: (1) a U.S. citizen poses an “imminent threat” of violent attack; (2) capture of the citizen is not feasible; and (3) the strike can be conducted consistently with law of war principles.
So, does this mean that President Obama could have ordered up a drone strike when Tsarnaev was joy-riding away from cops or tucked away in a boat in someone’s backyard?
If the idea of using lethal force without due process on Tsarnaev in Boston sounds nuts, consider California cop-cum-cop-killer Christopher Dorner’s terrifying days on the lam in February, during which the police opened fire on two different blue pickup trucks (shooting a young woman and her elderly mother in the process), which they mistook for Dorner’s gray Nissan.
But surveillance is one thing. Lethal force is quite another. Online sleuths had found two other possible perpetrators of the crime that turned out to be false positives. If lethal force had been used, it might have reached the wrong target.
There’s a line of Supreme Court precedent that covers precisely how constitutional protections like due process narrow in times of national crisis. DOJ cited one of these cases, Hamdi, in its drone memo to support the proposition that “due process analysis need not blink at those realities,” those realities being offensive combat necessitating government’s defensive force. But Hamdi wasn’t about lethal force; it was about detention. And DOJ’s drone memo wasn’t about the legality of lethal force in the midst of hostilities, but about justifying drone strikes outside the battlefield context.
The controversy over the drone memo was that it was a secret document not intended for public eyes that the administration drafted to justify lethal force against American citizens in the civilian, non-“battlefield” context. The only requirement the government must satisfy before using such force is that the citizen must have been deemed an “imminent threat.” For a threat to be “imminent” the government need not show any “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” In fact, once a person has been deemed an “imminent threat,” the only way DOJ crosses him off the potential-drone-target list is if the person formally renounces or abandons threatening activities.
In response to Rand Paul’s filibuster, Attorney General Eric Holder clarified the Administration’s position with regard to the legality of drone strikes: “Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on U.S. soil? The answer to that is no.”
This is where it gets tricky. Rand Paul was satisfied with this answer. But wasn’t Tsarnaev engaged in combat? Having just detonated a bomb, Tsarnaev was hiding in a boat, while the city that provided the setting for Boondock Saints stopped to conduct a manhunt. If ever there were a time when a city might consider it to be under an “imminent threat,” surely that’s how Bostonians would describe themselves in the immediate aftermath of an IED. Tsarnaev never renounced or abandoned threatening activities or association with Al Qaeda, so under Holder’s test, DOJ wouldn’t release him from its unmanned crosshairs.
While terrorism defines the murky legal twilight between war and peace, due process cannot become an afterthought. We don’t all need to filibuster, but it’s worth asking whether drones are going to play a greater part in domestic security. The bright lines Holder has drawn aren’t quite bright enough.
Kathryn Ciano is a lawyer in Washington, D.C. Boston Marathon image courtesy of Big Stock Photo.