The Fact That Drones Are Used Is Irrelevant
Jack Goldsmith, quote here, makes a very valid point.
The use of lethal force against a U.S. citizen in furtherance of the Authorization for Use of Military Force passed by Congress after 9-11 or other inherent authority that he may have as commander-in-chief of the United States armed forced, when authorized by the President of the United States or a suitable person to whom the President has delegated that power, may be morally or legally problematic.
But, it is not morally and legally problematic because the instrument of that use of force is a drone controlled by an active duty military airman operator in Salt Lake City thousands of miles away. It would be just as morally and legally problematic (or not) if it were carried out by a manned aircraft operated by the Air Force, or an Army soldier on the scene with a sniper rifle or a Marine with a saber. The debate really isn't about drones at all.
This doesn't mean that it is not a problematic practice. Unfortunately, our President, despite being a constitutional law professor by trade himself, and a liberal has given short shrift to efforts to take these legal problems seriously.
Below the jump I outline many of the serious legal issues presented by the approach which the administration has failed to adequately engage and the Courts have unfortunately not forced it to address.
Secret Policies Are Improper In A Democracy
No one questions the right of the President to keep operational law enforcement and military operations information secret. But, it is highly problematic to keep official legal interpretations of the President's rights to use lethal military force against U.S. citizens secret from the American public in a democratic state. The rules of law belong to the people and are inherently incapable (except in so far as they disclose particular operational facts) of being secrets.
Civilian CIA Drone Operators May Be Improperly Carrying Out A Military Function
It may be problematic when his orders under his military authority are carried out by a putatively civilian employee of a government agency like the CIA that is not administratively part of the U.S. military, in part, because that civilian employee is not subject to the check and balance in place with soldiers who are subject to military justice calculated to hold them more accountable than a civilian employee of the CIA can.
The solution to this may be fundamentally administrative and bureaucratic. Perhaps covert operations responsibilities should be transferred from civilians in the CIA to special operations soldiers in the U.S. military (who were pivotal in carrying out the AUMF in the early days of the Afgan war). Mostly, this would be a change of title and not a change of personnel or duties. But, it would make CIA covert operatives and drone operators subject to military justice which might make them more accountable in practical terms.
Military special forces have been used some of the time, for example, to kill Osama bin Laden, but it appears that the U.S. has not done this consistently.
The Use Of Military Or CIA Resources Against U.S. Citizens In The U.S. May Be Illegal
Generally, the U.S. military is prohibited by statute from enforcing U.S. laws within the United States, and the CIA is forbidden by statute from conducting operations in the United States against U.S. citizens. These are jobs for civilian law enforcement.
The jet fighters scrambled on 9-11 that are referenced by Jack Goldsmith come within a narrow exception to that general rule, because it is impracticable for civilian law enforcement to patrol U.S. airspace to guard it against hostile aircraft and because there was a genuinely imminent threat to the lives of U.S. citizens in the nature of an invasion or insurrection for constitutional purposes, which no civilian law enforcement agency could respond to in a timely fashion. Similar complex rules related to piracy and warships govern the sharing of jurisdiction in the navigable waters of the United States and the open seas between the Coast Guard and the U.S. Navy and other U.S. law enforcement authorities. But, in general, the U.S. of lethal military force in the United States is prohibited.
The AUMF May Unconstitutionally Violate The Bill Of Rights As Applied To Authorize The Use Of Lethal Military Force Against U.S. Citizens
It may be problematic because the AUMF is unconstitutional insofar as it purports to authorize an unreasonable seizure of a U.S. citizen in violation of the 4th Amendment, denies a U.S. citizen due process of law prior to deprivation of his life or liberty that could have been afforded him in some manner under the 5th Amendment, or denies him the legal protections due to individuals who have been declared by the AUMF to be guilty of treason punishable by death in what amounts to an ex post facto bill of attainder without the constitutional protects afforded to people who are charged with treason.
The standards required by the 4th and 5th Amendments allow for the consideration of facts and circumstances, but require all searches and seizures to be reasonable under the circumstances, and require due process appropriate under the circumstances to be afforded. In general, these rights do not even hinge on citizenship status, although whether the relevant nexus of territorial or is based on the personal involvement of U.S. officials, is the subject of ongoing litigation.
The formal legal justification for the practice of conducting lethal drone strikes against U.S. citizens believed to be terrorists is that the threat is imminent and thus triggers the inherent sovereign right of self-defense. But, more often than not, the strikes are preplanned over the course of months and authorized by multiple layers of government officials, when no particular strike is known to be likely happen in a matter of hours or even days. This makes a mockery of the law of war requirement of imminence to exercise this self-defense authority.
It May Be Against The Law Of War To Declare War On Disorganized Terrorists
It may be problematic because it violates the international laws of war protecting human rights, which bind the United States since it has agreed to treaties to that effect, to treat a sovereign's effort to punish a group of conpsirators who aren't necessarily even formally part of a well defined entity or association who committed a crime, via military means against enemies who are too ill defined to constitute enemy combatants within the meaning of the law of war.
The alternative of treating 9-11 as a grave criminal offense wouldn't have been necessarily impossible or impracticable. A U.S. District Courts in the districts where the 9-11 attacks took place, to issue ex parte arrest warrants based on probable cause presented by affidavit to a judge or magistrate, to be enforced by U.S. civilian law enforcement officials including the F.B.I., and by the U.S. military in support of law enforcement activities outside the United States where it is not prohibited from doing so, for the arrest of particular suspected terrorists, anywhere in the world, using whatever force is necessary to accomplish this task, including deadly force, if an arrest cannot be accomplished without the use of force.
Arrest via deadly force is constitutionally permissible when the crime and the threat posed by the suspect is sufficiently grave and efforts to place that person under arrest fail. Extradition orders and Interpol warrants could have been issued. Suspects who were captured rather than killed resisting arrest, could have been tried, convicted and sentenced in the U.S. criminal courts. That route, in practice, has proved to be faster and less prone to novel "lawfare" than prosecutions via military commissions. Of course, this would mean that there was an obligation to at least try to capture rather than kill suspects when this was feasible.
It May Violate The Treason Clause And The Laws Of War To Use Lethal Military Force Against Known U.S. Citizens
A U.S. citizen, under the laws of war, is presumptively not an enemy of the United States under an Act of War, and it isn't clear that it is consistent with the treason clause of the U.S. Constitution (which was drafted by people who were just a few years earlier engaged in conducting an insurgency at a convention lead by the military commander of that insurgency), to ever use the power to declare war under the U.S. Constitution to authorize war against a particular U.S. citizen while he is a U.S. citizen.
Of course, no one presumes that it is a sanctionable act for a U.S. governmental offical at any level to kill or authorize the killing of a U.S. citizen in the course of an otherwise lawful Congressionally authorized military operation against an enemy combatant, in a manner consistent with the laws of war, when one has a good faith belief that he is not a U.S. citizen based on a good faith lack of knowledge of his citizenship status, or simply because of a non-negligent case of mistaken identity.
If this sounds unfair, there are practical alternatives that could address this problem while providing some modicum of due process before lethal force authorized under military authority is used against someone who has at one time been a U.S. citizen. One would be to require the government to conduct a civil proceeding to revoke the citizenship of any U.S. citizen who is alleged to have relinquished his U.S. citizenship by taking up arms for, or swearing an oath of allegience to, a party against whom the United States has declared war.
The U.S. would not have to show all of its cards in such a proceeding. The grounds upon which someone's citizenship can be revoked do not generally set a bar quite as high as the grounds upon which it is permissible to use lethal military force against them. The mere swearing of an oath of allegience to or becoming a trained military member of a group belonging to an enemy of the United States against which it has declarared war would be enough in and of itself.
Existing U.S. law authorizes such proceedings and this would give a known U.S. citizen who is believed to be a terrorist a legal forum in which he or his best friend or guardian ad litem may seek to establish that he is not a terrorist before he is subjected to lethal millitary force, and give him fair warning that he is no longer entitled to the benefits of this status.
Just as in other actions to determine a person's legal status, substituted service reasonable calculated to give him or someone authorized to represent his interests in court actual notice could be authorized so that the U.S. government doesn't have to send process servers into terrorist training camps.
Even the notion of requiring that notice be personally delivered to someone who has been declared to be legally beyond the protection of the law is not unprecedented in either history or literature.
It May Violate The Violate The Laws Of War To Authorize The Use Of Legal Military Force Against A Valid Target When A Civilian Neutral Will Inevitably Be Killed As Collateral Damage
It may be problematic because people other than the intended target are killed as collateral damage in drone strikes, when unlike the usual case, where every national of a foreign country is declarared to be an enemy and its soldiers are declared to be enemy combatants, the AUMF may declare the target to be an enemy combatant, but may not necessarily declare the civilizans in his presence to be enemies at all. The standards under the international laws of wars that authorize the killing of innocent neutrals in certain circumstances are different from the standards that authorize the killing of enemy combatants or enemies.
I assume, although I don't know, that the law of war provides for greater protections for civilian neutrals in wartime than it does for enemies, even if those protections are not absolute. For example, there might be an obligation under the laws of war to confer with a diplomatic representative of that civilian neutral's national government, if practicable, before using lethal military force.
It May Be An Act Of War And Against U.S. Law To Carry Out Military Operations On The Soil Of A State Whom The United States Has Not Declared War Without Its Permission
It may be problematic when the United States conducts military operations on or above the soil of a foreign country with whom the United States is not at war, which has not granted the United States the permission to conduct. Indeed, doing so may constitute an Act of War, and in the case of a country like Pakistan where many of the drone killings have been carried out, it may be an Act of War with a country that has nuclear weapon stockpile.
Of course, to the extent that the foreign state consents to U.S. military operations on its soil, this problem is solved. And, this might be a "political question."
U.S. case law has held that the arrest of someone in a foreign country in violation of an extradition treaty with that country by U.S. law enforcement officers is not unconstitutional or in violation of U.S. law that the criminal defendant can enforce. But, it isn't obvious that the same conclusion applies to military operations (although the non-court precedent of the arrest of Manual Noreiga in Panama by the U.S. military and his subsequent prosecution for drug offenses argues otherwise).