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02/26/2013

Jack Goldsmith on Drone Strikes within the United States
Michael Ramsey

At Lawfare, Jack Goldsmith: Of Course President Obama Has Authority, Under Some Circumstances, to Order Lethal Force Against a U.S. Citizen on U.S. Soil (and a Free Draft Response to Senator Paul for John Brennan).  From the introduction:

I noted last week than in his answer to the question whether the Obama administration could “carry out drone strikes inside the United States,” John Brennan gave this non-response: “This Administration has not carried out drone strikes inside the United States and has no intention of doing so.” Now Senator Paul has followed up in a letter that asks Brennan: “Do you believe that the President has the authority to order lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without a trial?” Senator Paul says that he will block Brennan’s confirmation unless he “directly and clearly” answers this question. That should be easy for Brennan to do. The direct and clear answer to the question is, “Yes he does, under certain circumstances.”

I agree with the general statement, and I agree with the "certain circumstances" Professor Goldsmith goes on to outline (basically, as absolutely necessary to counter immediate threats of harm, in self-defense, or in a battlefield-type situation).  What's missing (implied, perhaps, but not directly stated) is this: an explanation of why, constitutionally, that's correct.

My answer is that where due process protection applies (as it surely does within the United States), unilateral executive deprivation of life is allowed only in narrow categories where there is strong evidence of a historical exception.  That's the case in most or all of the situations Professor Goldsmith notes.

Putting matters this way is important because it contrasts with the Justice Department's defense of drone strikes on U.S. citizens abroad (a defense that by extension seems to apply to strikes within the U.S. as well).  In the Justice Department view, as I understand it, the test for executive action is not categorical but derives from balancing the particulars of any given situation.  (See this assessment from Gregory McNeal).

The balancing approach is flawed in two respects.  First, it is not grounded in a textual or historical understanding of the Constitution.  And second, it doesn't provide a meaningful limit on the executive -- especially in a field where before-the-fact judicial review is unlikely.  The President's lawyers will be able to argue that the balance favors a strike when they (and he) want the balance to favor a strike.  Opponents may argue the contrary, but the right answer won't be obvious, and the initiative will be with the executive.  In areas of weak judicial review, categorical rules provide the best promise of limits on the executive, because violations are less debatable.

So I would amend Professor Goldsmith's conclusion to say: “Yes he does, under certain circumstances, which are defined by narrow, historically based categories."

Further note:  The House Judiciary Committee will hold a hearing tomorrow (2/27) on drone strikes on Americans overseas.