by Michael Figura, Bill of Rights Defense Committee
In Attorney General Eric Holder’s recent contentious appearance before the Senate Judiciary Committee, he hinted that President Obama would soon make a speech on the topic of drone usage for targeted killing. Holder alluded to President Obama’s promise for more openness on the issue in his State of the Union address:
“We have talked about a need for greater transparency in what we share, what we talk about,” said Holder, who added that with the release of more information, “there would be a greater degree of comfort that this government does these things reluctantly but also in conformity with international law, with domestic law and with our values.”
Transparency
The executive’s track record on this has been dismal. The administration firstdenied the existence of any sort of drone or targeted killing program, continued touse the denial as a shield against liability for its killings in court, while beginning to announce its reasoning informally in speeches by various executive officials.
Any actual documentation of the administration’s logic for assassinating both citizens and non-citizens was unseen until a “white paper“ summarizing a portion of the goverment’s logic was leaked to the press.
Finally, the administration has begun to show some of the actual (still classified legal) memos outlining the criteria for extra judicial killing to selected members of congress. However, the public still doesn’t know under what circumstances the President and his lawyers think would justify their murder from the sky.
Transparency would be a good first step. Senator Rand Paul (R-KY) staked out a courageous position on in his recent filibuster, finally forcing Eric Holder todeclare:
Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.
However, this representation (which begs the question: how does Holder define combat?), disclosure of all of the legal memos around drones, and a clear speech from President Obama explaining his necessity for keeping a “kill list” (or “disposition matrix,” if you prefer the administration’s sanitized euphemism) are only the beginning.
Accountability
Ultimately, the people of the United States and their all too often cowed representatives in Washington need to demand a stop to murder, killing and assassination by drones in contravention of the Constitution, international law and human rights law. The broad claims staked out in the leaked white paper make clear that the administration is currently operating under a rubric that violates all three.
While some constitutional issues are esoteric, the protections of due process under the Fifth Amendment are not. The government does not have the right to deprive you of your life, after review of your perceived sins by government officials on “Terror Tuesdays.”
Some in Congress and the punditocracy have suggested that the due process problem be solved by so called “drone courts” where the government would secretly present the evidence against you to a judge who would then sign a death warrant. While paying some lip service to the idea that an independent judiciary can constrain executive power, a secret court authorizing murder is not a check or balance in any meaningful way.
One searching for support for this proposition need look no further than the FISA court, which has evolved into a rubber stamp for the NSA’s pervasive warrantless wiretapping program. Under the watch of the FISA court the government is setting up a data center in Utah that will store:
near-bottomless databases[with] forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.
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If you’re comfortable with that sort of effective oversight, then secret drone courts might be for you.
Secret drones courts are not only a terrible idea because their inherent secrecy makes any constraint on executive authority doomed to fail. The basic premise of such courts, that the government would have time to go to the court, present evidence, and await a ruling, would inherently make the killing sought by the government unlawful, because the threat would not be imminent, as defined by international law.
The fix for drone murder is not to facilitate it with a shadowy court–it’s to demand that the Executive Branch transparently comply with the constitution and international law that constrains its actions.
Michael is a BORDC 2012-2013 Legal Fellow. He is a recent graduate of City University of New York School of Law (CUNY), where he served as Executive Articles Editor of the New York City Law Review and was awarded several fellowships, including the Haywood Burns Fellowship for Civil and Human Rights and Charles H. Revson Law Student Public Interest Summer Fellowship. Since graduating from Wesleyan University in 2006, Michael’s student internship and prior experiences including serving with the Center For Constitutional Rights, CLEAR (Creating Law Enforcement Accountability and Responsibility) Law Clinic, Office of the Appellate Defender of New York, and the New York Civilian Complaint Review Board.
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