I don’t often agree with Kentucky Sen. Rand Paul, but I agree with his opposition to American drone strikes in countries like Yemen, Pakistan and Afghanistan. Paul criticizes extrajudicial executions of American citizens abroad, and they deserve criticism.
Since the administration of George W. Bush, the United States has been using drones to locate and exterminate people abroad who are suspected of being terrorists or otherwise engaging in anti-American activities. President Obama escalated the use of drones once he took office in early 2009. On Sept. 30, 2011, in Yemen, Islamic militant Anwar al-Awlaki became the first U.S. citizen killed in a drone strike. His son, 16 year-old Abdulrahman al-Awlaki, also an American citizen, was killed by another drone less than a month later. Nasser al-Awlaki, father of Anwar and grandfather of Abdulrahman, wrote about the loss of his family members and his futile court battles to find out why his grandson – never officially suspected of terrorist activity – was targeted.
In the wake of the al-Awlaki deaths, legal commentators like Glenn Greenwald accused the drone program of being unconstitutional. Such accusations were twofold: 1) targeting American propagandists like Anwar al-Awlaki who had never participated in actual terrorist attacks violates the First Amendment, and 2) executing American citizens without due process (such as a formal indictment or a public trial) violates the Fifth Amendment.
The drone program implicates more than just individual rights, however. It’s a deeply secretive program, operated by both the U.S. military and the Central Intelligence Agency from hidden bases, and it is authorized by mostly secret legal reasoning without judicial authorization or any adversarial scrutiny. To the public’s knowledge, no court has ever given its stamp of approval to the program, which is solely controlled by the executive branch under the President of the United States.
The co-author of a secret legal memo purported to authorize the drone program is former Office of Legal Counsel attorney David Barron. Barron left that post in 2010 and became a Harvard Law School professor. In September of 2013, President Obama nominated Barron to fill a judicial vacancy at the U.S. Court of Appeals for the First Circuit. On May 20, after months of delay, the Senate voted 52-43 for cloture – a procedural hurdle for permitting a final vote on Barron’s nomination. Barron was confirmed the next day by a vote of 53-45. He will now enjoy a lifetime appointment to the second highest level of the federal court system.
Just before the cloture vote, Sen. Paul derided the secret nature of the drone program and urged his colleagues to vote against Barron. After quoting comedian Stephen Colbert that “due process just means there’s a process, right?” Paul declared, “The current process is apparently: First the President meets with his advisers, decides who he’s trying to kill, and then kills them.” Paul convinced just two Democrats, Joe Manchin of West Virginia and Mary Landrieu of Louisiana, to cross the aisle and vote against cloture.
Rand Paul isn’t right about everything, but he’s onto something here. It should trouble all Americans, regardless of party affiliation, that the president has the power to secretly target and execute American citizens without indictment or trial, far away from any active battlefield, for advocating militant ideas, not for committing actual violent acts. Anwar al-Awlaki may have been a very bad man, but we can never fully know to what extent because the process we have to identify, prosecute, and sometimes execute very bad men – the criminal justice system – played no role in his assassination. What the drone program demands we do is blindly trust the word of the president that he’s targeting and killing only truly bad, dangerous people, and nobody else.
Maybe President Obama is being honest and his judgment is never wrong. But what about the next president, who will inherit that same power to secretly target and kill American citizens? And what about the president after that? Do we want our president to be judge, jury, and executioner for troublemaking citizens? The reason the Bill of Rights includes protections for freedom of speech and due process, along with other limitations on government power, is because we know we can’t trust our leaders.
It’s not personal, or partisan. The Framers of our Constitution recognized that all leaders are fallible. They make mistakes, they use bad judgment, and they are often intoxicated by power. The Bill of Rights, when respected and enforced, protects the individual rights of all Americans from abuse at the hands of our leaders.
People like Sen. Rand Paul and Glenn Greenwald are right about the dangers of the drone program. By carving out exceptions to individual rights – even those of heinous wrongdoers – in the name of military or “national security” expedience, we weaken constitutional protections for us all. Is the never-ending war on terrorism really worth that expense?