U.S. drone strikes against American citizens have been in the news for some time time now. Certainly Attorney General Eric Holder's admonition last week that the president has legal authority to order a targeted strike against an American citizen located within the United States has brought the discussion much closer to home. International terrorism, which often has roots or ties to religious fundamentalism, is the likely target of such proposed force. Is this exertion of executive power merely typical of contemporary civil rights & due process, or is it, as Senator Paul suggests, "an affront to the Constitutional due process rights of all Americans."
By What Authority?
Response from Michael D. Peabody
The concept of flying robots sent by secret agents on search and destroy missions may seem more at home in the film The Matrix than in America, but in 2013, thousands of people living in war-torn regions of the world know the reality first-hand. These armed drones, controlled by pilots who sit safely in the comfort of protected bunkers in the United States, are able to identify and destroy specific targets around the world with deadly accuracy. Now there is discussion about whether the federal government can use armed drones against United States citizens on U.S. soil, and an even larger discussion of what role the military can play in the domestic war on terror.
In the wake of sweeping legislative changes following the attacks of 9/11, President George W. Bush was roundly criticized, and justifiably so, for sacrificing Constitutional and legislative protections in exchange for security. But the election of an outspoken critic of Bush’s policies, Barrack Obama, has not changed course and in fact has continued many of those policies and has made even more determined moves that undermine core freedoms. Most recently, the Obama administration has defended the potential use of attack drones in the United States to destroy enemy combatants who also happen to be citizens of the United States.
Examining the issue of drone strikes on American citizens requires us to take a larger view of military law and history. Domestic military action in terms of martial law is in fact legislatively, but not constitutionally, limited.
In 1878, after Reconstruction, Congress passed the Posse Comitatus Act in order to limit the government from using the military as a form of domestic law enforcement. This law, championed by southern lawmakers, prevented the President from ordering that the military battle tanks patrol our streets or attack helicopters from showing up at crime scenes. We do not live under martial law – the military is trained to seek, kill, and destroy and police are trained to protect and serve. The only military forces excluded from the Act are state National Guard units which can be called out by state governors and the U.S. Coast Guard which has a dual military and maritime law enforcement role.
The President was able to take certain actions under the Insurrection Act of 1807 which are exempt from the Posse Comitatus Act which allows the President to put down insurrection, rebellion, or lawlessness in a limited way if local governments and state government are unable to handle the situation. However, both acts together limit the power of the President and delay any federal action.
In 2006, President Bush urged Congress to pass laws that would allow the President to order the military to restore order or enforce laws in the wake of natural disasters, terrorist acts, or a variety of other serious conditions. Congress passed the legislation but then repealed it in 2008.
However, in 2011, President Obama signed the National Defense Authorization Act of 2012 (NDAA) which provided that certain people can be subject to federal martial law, including “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
Under this Act, the federal military, not law enforcement, could conduct domestic terror investigations and interrogations of anybody who had committed a “belligerent act” or who is suspected of cooperating with terrorists. They would be treated as the enemy, and their constitutional rights could be suspended until the “end of hostilities,” and they could be detained indefinitely. Citizens who fall into this category would have their Sixth Amendment right to a trial suspended.
The definition of an “enemy combatant” is fairly vague under the NDAA definitions and it remains to be seen whether the military would be capable of conducting an inquiry to verify that the targeted individual is indeed an enemy. It would seem that this definition, which would transform an ordinary citizen into an enemy combatant might require a trial, which would require a writ of habeus corpus, that the person be brought into court, or that the suspect be actively engaged in combat and thus eligible to be killed in the heat of battle. Would a suspect have to associate with certain people, have a suspicious pattern of behavior, or simply express certain sentiments? What is a “belligerent act” anyway? It does appear fairly clear that the person has to associate with al-Qaeda, the Taliban, or associated forces, which may prove a challenge if, as Afghan president Hamid Karzai has suggested, perhaps more from frustration than actual information, that the United States has been attempting to work cooperatively with the Taliban in Afghanistan, but I digress. Perhaps the list of enemies could be changed in each annual NDAA as global politics change.
Incidentally, I would hope that writing this essay at the threshold of what I hope will not be a new era of McCarthyism is not enough to raise any eyebrows and to that end, I assure you that I am a happily patriotic American who is opposed to all forms of terrorism, both foreign and domestic as well as intergalactic should it come to that. If there’s terrorism, I’m against it. It doesn’t matter whether terrorists are motivated by religion, want everybody to drive electric cars, or are rabid vegans -- violent acts are comprehensively indefensible.
The laws that prohibit the use of military forces within the United States in the majority of circumstances are not constitutionally guaranteed and can be changed by Congress. But as written, they are intended to allow the President to respond to attacks with a military level of overwhelming force and to do things like fight back invasions onto U.S. soil.
Terrorists are not going to march down Main Street in straight lines behind tanks, storm the beaches of Malibu in landing craft, or attack New York in waves of fighter planes where they can be easily spotted, identified, and destroyed. Instead, terrorists hide in plain sight by mixing with the population and are virtually undetectable until they act. Thus, the threat of domestic use of military drones is extremely remote unless the terrorists have done something extreme like establish a remote base of operations within the United States that is not accessible by traditional means and requires a drone strike. I don’t expect to see drones swooping down to destroy cars on the freeway.
Instead, the threat to Americans is the encroachment of laws, such as the NDAA which could allow innocent citizens to be tagged as terrorists, be stripped of Constitutional rights such as a speedy trial, and be thrown into prison indefinitely without opportunity to be represented by attorneys or to appeal their cases. The military would be the final law enforcement branch of the government, America would be a permanent battle zone, and citizens caught in the trap could simply disappear into another legal dimension. That’s the real issue.
Author: Michael D. Peabody
Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”