Drones, drones, drones, Benghazi, drones, drones, fiscal cliff, drones, sequester and now back to drones. It seems like most Republicans and some Democrats can not get over the fact that is might be reasonable and certain to use drones to kill Americans and worse to kill Americans in the United States. At first, to the lay person it might seem this is totally unconstitutional, however it is not. This all comes out of testimony by Attorney General Holder to Congress about the drone program. In this testimony, Holder was asked by, Sen. Ted Cruz, R-Texas, if Holder believed it would be constitutional to target an American terror suspect “sitting at a cafe” if the suspect didn’t pose an imminent threat. The reply was a resounding “No”. This is important because the key part of that sentence is “imminent threat”. Yet it doesn’t stop there. In a letter to Sen. Rand Paul, in response to a question about domestic use, Attorney General Holder responded with; “”I suppose,” to imagine an “extraordinary circumstance in which it would be necessary and appropriate” under U.S. law for the president to authorize the military to “use lethal force” within the United States.” However he added that “was “entirely hypothetical” and “unlikely to occur.” So what does all this mean?
According to some news outlets it means that the United States Government can use deadly force without due process to eliminate a terrorist. Some take it further as to suggest that for any terrorist activity as long as the government “believes” there to be an “imminent threat.” Still… what does it really mean? This is where soundbites and new programs go wrong. A sitting Senator asked the Attorney General if he ever thought the government would use drone strikes to kill American (domestic) terrorists. The answer was what you would expect from any attorney. Yes! It is possible that a situation could arise where a drone strike could be used. This is causing the Republicans to freak out and the tin foil hat crowd to scream even louder but the fact is they are both WRONG! (The Republicans and the Tin Foil Helmet Brigade)
Lets start with this. During Sept 11th attacks, there was a discussion that took place on the possibility of shooting down planes via fighter aircraft. It was ruled out because the final plane (The one that crashed in Penn.) had crashed and intel pointed to no further attacks and current procedures were starting to kick in. Yet, had there been other planes it is well established that the government would have and would be in the right to order those aircraft shot down. In that scenario more than two hundred people would have been killed with out due process and it would have been legal. The same would apply to drone strikes inside the United States.
By now, some are saying no it can’t… it’s illegal and unconstitutional. Sorry folks, not it isn’t. There is a legal principle that has been used many times in Supreme Court cases where “exigent circumstances” allowed for usurpation of certain rights. It boils down to “imminent danger.” IF a terrorist is sitting in a cafe, lets say a Star bucks in New York and there is plenty of evidence to suggest that said terrorist is going to use a cellphone to detonate a dirty bomb somewhere in Manhattan and there is no way to get to him in time to prevent that from occurring and a drone is available and the best course of action then it would be perfectly legal to send a Hellfire missile screaming at him. That would be an “exigent circumstance.” and it would have to be about that severe for something like that to occur. When Holder, says the government has no plans to use drones in the United States he means it. When he says it is possible for a situation to arise where drone strikes could be used in the United States he is correct. I just gave you an example of one.
Not sure yet? Lets go further. Some commentary has suggested that it is unconstitutional. Well, I am afraid not. First we have the oath that each President takes upon entering office. According to the Constitution, “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” The key part is preserve, protect and DEFEND. This lays the foundation for executive action. This was part was actually dealt with prior to and during as well as immediately after the Civil War. The President is obligated to defend the United States. Most people don’t have a problem with this part and some go so far as to make the position that drone strikes are still extraconsitutional. But wait… Article 4, Section 4 states “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.” This lays it out pretty well. This clause states the Executive branch can act when the Legislative branch can not be convened. So in the case above with the terrorist at Star Bucks there would be no time to convene Congress to gain permission to act. Hence since it could not be brought together the President has the constitutional authority to order the strike.
Overall, the screwed up fact is that truth doesn’t make good copy. Depending on the exigent circumstances, drone strikes could happen in the United States. That does not mean you have to be worried about them. It means primarily that the give and take between Rand and Holder and Cruz and Holder is a legal exercise and not a real one. It would take a circumstance that is extra, extra ordinary for drones to even be practical to use in the United States. We are not talking about some redneck with a grudge against the government getting a missile in the ass. We are talking about a bonfied, verifiable, threat in the form of a domestic terrorist. Ever seen the movie “Peacemaker”? That is an example and had the sniper fired through the little girl it would have been legal, tragic but legal.
Sadly, a significant number of American’s don’t even understand the laws of the very country that gives them the freedom to question those laws. So far the question is not IF we should use drone strikes but are they legal? The legality of something does not always reflect the reality of something and visa versa. Basically it was a thought exercise for the purpose of pandering to a constitutance but in realty it holds no bearing. It isn’t even an agree to disagree situation the fact remains that drone strikes are legal until a law is passed that says otherwise. Yet, just because something is legal doesn’t mean we have to use it. That is a different question entirely.