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."
No Constitutional Authority
Response from Gerald Chipeur
On March 7, 2013, Attorney General Holder made a statement confirming that the President of the United States of America has no constitutional authority to utilize a drone to kill a citizen of the United States on American soil when that citizen is not engaged in an attack on another person.
That is an important acknowledgment and commitment.
However, it is not enough!
Constitutional rights are not based on the geographic location of an individual. American citizens are entitled to their constitutional rights anywhere and at all times.
The Constitution of the United States of America protects citizens against the actions of the Government. The geographic location of the Government is not a factor in the limitations set forth by the Constitution.
Therefore, the geographic location of the citizen must also be irrelevant to an analysis of the powers of the President to kill Americans without due process of law.
Before coming directly to the point on what the President may and may not do under the Constitution, it is useful to first acknowledge that in time of war, soldiers may, under the Constitution and international law, kill persons who are an immediate threat or are personally involved in acts of war against the United States of America.
But can the President order the death of an American citizen under any other circumstance? The answer must be no. This is because the guarantee of due process of law prevents the President from bypassing the courts in ordering a summary execution.
The beliefs, particularly the religious beliefs, of citizens should not be a factor in the decision of the President on any question under the Constitution. In the event the beliefs of a person are considered a threat by the President, then the proper next step is to direct that Federal prosecutors bring the matter before the courts through due process of law and not through an executive order directing a summary execution.
Benjamin Franklin said it best over two hundred years ago:
"Those who give up their liberty for more security neither deserve liberty nor security."
Author: Gerald Chipeur
Partner, Miller Thomson LLP
Mr. Chipeur has appeared in the Supreme Court of Canada and in other Canadian courts and administrative tribunals as an advocate on questions of administrative and constitutional law. In particular, he has litigated charity, constitutional, defamation, education, electoral, environmental, first nations, health, human rights, media, natural resources, privacy and public safety law issues.