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02/10/2013

Greg McNeal and Andrew Kent on Drone Strikes
Michael Ramsey

Gregory McNeal (Pepperdine Law, and a leading national security law scholar) comments on my prior post on drone strikes:

Just a brief thought, it seems to me as a Constitutional matter that you're right that there does not seem to be a geographic limitation to the authority that the administration is claiming.  He could presumably kill U.S. citizens inside the U.S.  While it's not really historical practice, the fact that both President's Bush and Obama have scrambled jets to intercept and perhaps shoot down airliners filled with U.S. citizens demonstrates the willingness of modern presidents to kill U.S. citizens inside the U.S.  And these would be high collateral damage strikes ---presumably there would be hundreds of innocent people and perhaps a handful of legitimate targets on board.  Of course this is a clear case of imminence. 

With that said, the [Justice Department's] white paper [on drone strikes] explicitly notes on Page 2 that imminence is part of the due process analysis "As part of the due process analysis; the paper explains the concepts of "imminence," feasibility of capture, and compliance with applicable law of war principles."  All of which I read as saying that the administration sees the scope of due process as context dependent and the context they are situating this fact pattern in is wartime, geographically limited to locations where AQ or an associated force has a significant and organized presence and from which senior leaders are planning attacks (p.5) and the danger of those attacks has some component of imminence worked into the context analysis.  If the target was located inside the U.S. I would think a contextual based analysis would need to take that fact into account. 

As a separate matter, there was an interesting CATO sponsored debate on this last year (I had a small essay in it discussing In Re Neagle).  Here is the link.

And here is the abstract of Professor McNeal's essay at Cato (which is well worth checking out in full):

Gregory McNeal argues for another source of executive power that may legitimize the targeted killing of Anwar al-Awlaki, namely the federal protective power. Even outside of wartime, longstanding precedent allows federal agents to protect the interests and liberties of the citizens, as well as federal property and public servants. One need not convict al-Awlaki of treason to understand that he poses a threat in this sense, and doing so does not render the Treason Clause otiose; treason trials may still proceed and are not suppressed in any way. He further argues that issues such as this one, requiring "an informed debate [on their] benefits and dangers," are obviously political questions — therefore properly out of reach of the courts.

RELATED:  Some similar thoughts from Andrew Kent at Lawfare, with further historical perspective on the Civil War precedent.