Yesterday Rand Paul made headlines for doing an impromptu old-school talking filibuster on the Senate floor to oppose President Obama’s nomination of John Brennan for the CIA head. Paul admitted that he would probably still vote to confirm Brennan and that his speech was more to bring attention to the administration’s drone policy. What has followed has thus far been the height of the debate over the drones.
However, it’s important to note that this really isn’t about drones. The anti-war left and many paleo-conservatives have long criticized the use of drones for many different reasons – the psychological disassociation of the drone pilots from the war, the use of drones to subvert another nation’s sovereignty, and the high collateral damage from the program. This new debate is about the legal justification given by the Obama administration for using drones to target American citizens for assassination. It mostly comes from the targeted killing of suspected terrorist and American citizen Anwar Al-Awlaki and his sixteen year old son, both killed by drones in Yemen. The justification given was loosely defined as Yemen was not a traditional battlefield and Awlaki did not pose a traditional imminent threat. It led many, including Paul, to ask whether similar strikes could be carried out inside the US, and Eric Holder essentially answered that question in the affirmative. He said that there are scenarios where the US government would be justified in targeting an American citizen for assassination within the country.
While Paul’s filibuster drew applause from groups on both the left and the right, some see it as a perfectly reasonable and necessary measure for the US to take in the loosely-defined “global war on terror.” Their arguments often resort to law enforcement analogies, and one liberal pundit, Michael Shure, even went so far as to compare the legal situation to Ruby Ridge. Now this brings up something interesting and reignites the old debate over whether Ruby Ridge was justified. Except that we’ve had that debate and the conclusion was that it wasn’t.
Ruby Ridge is a messy and complex story to piece together but it essentially came down to whether the FBI agents on-site during a siege were allowed to “shoot on sight.” Randy Weaver, with his family and some friends, was holed up in his house after an earlier shoot out with agents. He was armed, and given the earlier confrontation, considered extremely dangerous. As agents staked out his house, they had sharpshooters target any adult male with a weapon and use deadly force. Weaver, his wife, and another were all shot. Weaver and his friend survived; his wife was killed.
What’s the relevance for the drone debate? Well the conclusions reached by the Senate Subcommittee in 1995 completely contradict the administration’s current justification and it’s pretty clear. They found that “Rules of Engagement cannot eliminate constitutional rights to certain suspects, even if they are particularly dangerous.” The shoot on sight orders were completely unconstitutional and deadly force could only be used in self-defense or defense of another, and only after the person is given an opportunity to surrender. I find it also important to note that one of the members on the committee that issued the report, Senator Diane Feinstein, came out against Paul to support the use of strikes in extraordinary circumstances, echoing Holder’s type of cost-benefit analysis, rather than as a rule of law.
Drone strikes are necessarily shoot on sight as they don’t give an option to surrender at any point. It is a kill order no different than what was given at Ruby Ridge and therefore, according to the Senate report, completely unconstitutional. People like to pretend that because we are in a war on terror, we should make exceptions for the time being, that new definitions of battlefields and threats are necessary. But when will it not be necessary? Lincoln suspended habeas corpus during the Civil War, but when it was over, the right was restored. When will the war on terror be over and when will some places stop being battlefields? It is hard to imagine that time; it’s not like terrorism didn’t exist before 9/11 or will ever stop existing. Were we foolish throughout all of our history to protect this civil liberty at the cost of our security, or are we foolish now for conceding a constitutional right that we will never get back?