Congress’ first filibuster for the 113th session took off in style. On March 6, 2013, Senator Rand Paul filibustered President Obama’s nominee for director of the CIA, John Brennan, because of ambiguity in the administration’s policy on domestic drone strikes. Although Paul withdrew after 12 hours, his message came across loud and clear: Obama must assure due process.
Senator Paul objected to Attorney General Eric Holder’s initial unwillingness to preclude the possibility of targeted killings within the United States. In a letter to Paul, Holder stated that while the administration prefers to rely on law enforcement authorities to incapacitate a terrorist threat, it is plausible for an “extraordinary circumstance” along the lines of 9/11 to arise where the administration “would have no choice” but to authorise the use of military force.
Senator Paul contended that this may open a backdoor to abuse. Paul initiated the filibuster in order to protest the unconstitutionality of potential drone strikes on American soil. Paul charged that “no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court”, later asking whether the administration would drop “a drone hellfire missile on Jane Fonda”, or Kent State.
Following Paul’s 12-hour filibuster, Holder reversed course, stating that no, the President does not have authority to use a weaponised drone to kill non-combatant Americans on American soil.
Drones in the national airspace
Unknown to most people, the mass introduction of domestic drones, or Unmanned Aerial Vehicles (UAVs), is almost inevitable. At the same time, there are insufficient regulations placed on drone use.
US city bans use of drones
Through the FAA Modernization and Reform Act of 2012, Congress designated the Federal Aviation Administration (FAA) with integrating UAVs into the national airspace by September 2015, which means that drones may become much more prevalent in the next two years.
In fact, the FAA predicts that there may be as many as 30,000 drones in less than 20 years, operated by public and commercial entities. This gradual transformation of American airspace is already underway: since 2007, the FAA granted 1,428 drone licences to police, universities and state transportation departments, 327 of which are still active.
Will these drones prove dangerous or benign? Drones may be used for apparently innocuous reasons – for example, to monitor agricultural production, traffic and to support emergency response. According to University of Washington law professor Ryan Calo, drones may yield commercial and societal benefits and by targeting drone use rather than inadequate laws, we would be “missing out on the transformative potential of drones”.
But the fact is, drones are uniquely well-equipped to engage in surveillance for commercial or political purposes, and to conduct targeted killings without jeopardising the lives of operators. Drones come in a variety of sizes, some as small as an insect, and can house high-powered cameras, thermal-imaging devices, infrared devices, and the capability to carry a weapon payload.
Drones have already been used in a law enforcement context in the US. For instance, in June 2011, a North Dakota county sheriff used drones to find three armed men accused of stealing cows. Drones have also been used to surveil borders, and DHS has previously lent drones to law enforcement agencies for programmatic purposes. In spite of this widespread use of drones, safeguards for Constitutional liberties have yet to be put in place.
The lethal force of the drone
Drones present the potential for lethal action against civilians on American soil. Drones have become popularised worldwide as a result of the Obama administration’s drone strikes in the Federally Administered Tribal areas of Pakistan. These strikes have been condemned internationally partly because the definition of “combatant” has been expanded to include any military-age male in the region of the strike.
The due-process-free killing of the al-Awlakis and Khan generated outrage among civil libertarians, and the ACLU filed a lawsuit on behalf of relatives of the deceased, arguing that the killings violated the right to due process (5th amendment), the prohibition on unreasonable seizures (4th amendment), and in the case of Anwar al-Awlaki, the prohibition on extrajudicial death warrants (the constitution’s Bill of Attainder clause).
Considering drones’ potential for lethality, there have been few notable attempts by the administration and Congress to ensure the protection of the constitutional rights of Americans. Without meaningful regulations on the use of drones and safeguards for American civil liberties, drones endanger a host of constitutionally-protected rights, including the right to due process, which until now has been sanctified by the 5th amendment to the constitution.
“Without meaningful safeguards of the civil liberties of Americans, the ‘transformative potential of drones’ will destroy the very American Constitution we are trying to preserve.”
Although Congress did act to expedite the integration of drones into the national airspace, a Congressional Research Service report published in January 2013 found that Congress has yet to prepare for the legal quandaries that arise with the widespread use of drones, whether this is in the realm of privacy rights or consumer rights. The right to due process is especially implicated in the case of targeted killings by means of drones. Considering Congress’ inaction on this front, Rand Paul’s stance against domestic drone strikes is particularly laudable.
As for the executive branch, the Department of Justice defended the deprivation of due process during drone strikes on US citizens. In a white paper released on February 4, 2013, the DOJ determined that an operation targeting a US citizen who is a senior operational leader of al-Qaeda or an associated force would be justified in the scenario that: an informed, high-level government official determines that the individual poses an imminent threat to the United States; capture is infeasible and the government continues to monitor the possibility of capture; and the operation is consistent with the applicable law of war principles.
Although problems abound with the white paper, due process is especially significant. As stated by Harvard Law Professor Noah Feldman, the concept of due process is “the oldest and most essential component of the rule of law”. Going back to the Magna Carta, the right to due process ensures the accused’s right to hear the charges brought against him, and to have his case heard by an impartial arbiter. Hypothetically, this is intended to guarantee that no one becomes victimised by arbitrary power.
The system devised by the Obama administration allows little possibility for guaranteeing due process. President Obama has reserved for himself the right to deliberate on a suspected terrorist’s culpability and the decision to capture or kill the individual.
In the matter of his life, the suspected individual has no opportunity to hear the charges brought against him, or present all the evidence and defend himself before an impartial arbiter. As such, he becomes victim to the abuse of arbitrary, unrestricted power – in a word, the very tyranny the Western legal system was designed to prevent.
In the words of Rand Paul, Obama crowned himself “judge, jury and executioner all in one”. Based on concerns for due process and the rule of law, there are currently discussions of instituting a drone court or a national security court to oversee the President’s decisions.
When AG Holder refused to prohibit drone strikes on non-combatant Americans within the US, the lethal potentiality of domestic drones became even more salient. Senator Paul’s brave stance reversed the course the policy could have taken. Paul’s stand must be understood in terms of the broader context of constitutional liberties and should be obliged accordingly by Congress and the White House.
Without meaningful safeguards of the civil liberties of Americans, the “transformative potential of drones” will destroy the very American Constitution we are trying to preserve.
Sadia Ahsanuddin researches technology and theories of modern warfare in New York. A Harvard graduate, Sadia previously worked at the Brennan Center for Justice and interned at the United Nations Educational, Scientific and Cultural Organization.
Follow her on Twitter: @SadiaAhsanuddin