The New Republic: Drone Strike Out: The Obama Administration's Drone Strike Memo Is Unconstitutional

By Jeffrey Rosen of The New Republic

he Justice Department white paper released on Monday by NBC News is the public's first direct glimpse at the legal reasoning that the Obama administration relied on in using a drone strike to kill Anwar al-Awlaki, a U.S. citizen living in Yemen. The memo's arguments are troubling on many levels. Although the Obama administration's brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture. But perhaps most troubling is the administration’s attempt to redefine the idea of the kind of “imminent threat” that can justify a targeted assassination.

The U.S. Supreme Court has previously held that the police can only use deadly force against fleeing, dangerous suspects when killing the suspect is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” But, in a vast expansion of this narrow precedent, the Obama administration says that the U.S. is not required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future” in order to assassinate U.S. citizens whom the government believes are Al-Qaeda leaders. Instead, the memo argues a “decision maker determining whether an al-Qaeda operational leader presents an imminent threat of violent attack against the United States must take into account that certain members of al-Qaeda …. are continually plotting attacks against the United States; that Al-Qaeda would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qaeda plots as they are developing and thus cannot be confident that none is about to occur.”

In light of the government’s possible ignorance of plots that may or may not exist, the memo concludes, when an al-Qaeda leader “has recently been involved in activities posing an imminent threat of violent attack against the United States, and there is no evidence suggesting that he has renounced or abandoned such activities, that member’s involvement in al-Qaida’s continuing terrorist campaign against the United States would support the conclusion that the member poses an imminent threat.”

This is an extraordinary conclusion. In Fourth Amendment cases, the Supreme Court has stressed that “the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” In reaching this conclusion, the Court rejected the eighteenth century rule allowing the use of whatever force is necessary to arrest a fleeing felon because “changes in the legal and technological context”—namely, the expansion of felonies to include non-violent offenses and new weapons technology (in particular, automatic guns) that make it possible for the police to kill suspects whom they previously would have had to physically subdue.

The Obama administration takes this narrow precedent and twists it beyond recognition. While the Supreme Court cited the existence of new weapons technology as a reason for narrowing the conditions under which the police can use deadly force, the Obama administration uses drone technology as an excuse for broadening those conditions. “What would constitute a reasonable use of lethal force for purposes of domestic law enforcement differs substantially from what would be reasonable in [this] situation,” the administration concludes. (In fact, the possibility of tracking suspected terrorists with drones, rather than killing them, suggests that targeted assassinations are even more constitutionally vulnerable today than they would have been at the time of the American framing.)

When officials conclude that “capture is infeasible,” the memo continues, “the intrusion of any Fourth Amendment interests would be outweighed by …. the interest in protecting the lives of Americans.” But of course, the question of whether American lives are, in fact, imminently threatened by a particular suspect is precisely the determination that the administration claims the right to make on its own—without an opportunity for an independent judge to examine the factual basis for the claim. “There exists no appropriate judicial forum to evaluate these constitutional considerations,” the Justice Department insists.

This “trust us” argument is precisely the one the Supreme Court rejected in the 2004 Hamdi, where the Court upheld the Bush administration’s power to detain enemy combatants, on the grounds that it had been authorized by Congress, but only after insisting that suspects could challenge the factual basis for their detention before a neutral decision maker. The Obama administration repeatedly invokes the Hamdi case to justify targeted assassinations, which have been specifically prohibited by Congress, and then omits the Supreme Court’s requirement that independent judges need to have the last word on whether or not suspects are, in fact, as dangerous as the administration claims.

The principle that core constitutional rights can’t be abridged unless there’s an imminent threat of violence isn’t only central to the Supreme Court’s understanding of the Fourth Amendment. It’s also the keystone of the Court’s understanding of the First Amendment protections for free speech. In his concurring opinion in Whitney v. California, the greatest opinion on free speech in American history, Justice Louis Brandeis objected to a law that made it a crime for a member of the Communist Labor Party of California to teach syndicalism, an anarchic alternative to capitalism.

Brandeis objected that “the accused is to be punished not for contempt, incitement, or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely.” Brandeis insisted that speech could only be banned if it “would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent.” He added that there must be “reasonable grounds to believe” that the danger is imminent and serious. And, in a reminder of his faith in public deliberation, he said the danger had to be “so imminent” that it was likely to occur “before there is opportunity for full discussion …. Only an emergency can justify repression.” Finally, like the Supreme Court in Hamdi, Brandeis insisted on the importance of neutral, judicial review. “It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.” Brandeis’s reasoning was adopted by the Supreme Court in a 1969 decision holding that speech can never be suppressed unless there is a serious threat of imminent violence; the Obama administration, ignoring this precedent, wants to justify not only suppressing speech but also assassinating citizens without specific and credible evidence of imminent violence.

There are other reasons to object to the administration’s justification of targeted assassinations—including its questionable claim that they are legally supported by Congress’s authorization of the use of force after 9/11. On pragmatic grounds, the administration's brief is a disaster: As the Church Commission found after studying the attempted assassinations of Castro, targeted killings are likely to produce an international backlash that threatens far more American lives than they protect. But, as a legal matter, the casual, and unpersuasive, attempt to read out of American constitutional law the principle that government can only kill citizens in order to prevent imminent death or violence in return is the most objectionable of all.