Analysis of the 'Drone Memo'

The killing of Anwar Al-Awlaki in 2011 has sparked a necessary debate about the use of unmanned drones to kill enemy combatants and the lawfulness of the President's "kill lists." Recently, NBC News obtained a copy of a Justice Department white paper outlining the legal rationale for the targeted killing of enemy combatants. In a timely post at firstthings.com, Matthew Franck explores the legal argument constructed by the anonymous authors at the Justice Department. He exposes two major errors:

MQ-1 Predator (en.wikipedia.org)

"First, the tight focus on whether American citizens can ever be the target of a “lethal operation” is under-inclusive. Much of the white paper is taken up with discussions of whether citizens are protected by the principles of due process ... But as a glance at the Constitution reveals, the due process clause of the Fifth Amendment (like the one later added in the Fourteenth) does not protect “citizens”; it protects “any person” without regard to whether he or she is a citizen or not. Thus, if the due process clause bears at all on the use of lethal force in wartime, it bears on the use of such force against anyone, not just citizens."

The second problem Matthew Franck exposes is that the white paper

"...is overly solicitous. The authors seem entirely innocent of the fact that where we are not contemplating the use of the law’s authority over persons (as we do in our criminal justice, immigration, or administrative-law systems), but are instead contemplating the use of military force against enemies in a war, the question whether we are affording those persons “due process” is an absurdity. The question, properly speaking, does not even arise."

Franck finds fault with treating drone strikes and other targeted killings in a similar legal framework to murder. He rightly explains that killing enemies in combat is "by definition not murder," Thus much of the white paper is irrelevant. What is relevant are the criteria prescribed by the paper for targeted killings:

“(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation is conducted in a manner consistent with the four fundamental principles of the laws of war governing the use of force [necessity, distinction, proportionality, and avoidance of unnecessary suffering].”

Matthew Franck concludes that these criteria should be used when conducting all targeted killings. The rest of the ‘white paper’ he says, “is a distraction, a legal error, and a moral confusion.” 

Best of the State of the Union

There was plenty to criticize in the President’s State of the Union address.  But, instead, we decided to focus on the positive in Obama’s remarks and those of SOTU responders Sens. Marco Rubio and Rand Paul. To that end, here are the excerpts from the three speeches that should give cheer to constitutionalists and all those who believe in limited government and the rule of law.  Whether these words make their way into policy remains to be seen.

On limited government:

Rubio: “[G]overnment’s role is wisely limited by the Constitution. And it can’t play its essential role when it ignores those limits.”

Obama: “It’s not a bigger government we need, but a smarter government that sets priorities ...”

Obama: “The American people don’t expect government to solve every problem.”

Paul: “[W]e absolutely must pass a Balanced Budget Amendment to the Constitution! The amendment must include strict tax and spending limitations.”

On the American ideal:

Obama: “Above all, America must remain a beacon to all who seek freedom during this period of historic change.  I saw the power of hope last year in Rangoon … when thousands of Burmese lined the streets, waving American flags, including a man who said, ‘There is justice and law in the United States.  I want our country to be like that.’”

Paul: “People say America is exceptional. I agree, but it’s not the complexion of our skin or the twists in our DNA that make us unique. America is exceptional because we were founded upon the notion that everyone should be free to pursue life, liberty, and happiness.”

On the Second Amendment:

Paul: “We are the party that adheres to the Constitution. We will not let the liberals tread on the Second Amendment! … We will not let any President use executive orders to impinge on the Second Amendment.”

Rubio: “We must effectively deal with the rise of violence in our country. But unconstitutionally undermining the 2nd Amendment rights of law-abiding Americans is not the way to do it.”

On the War on Terror:

Obama: “I recognize that in our democracy, no one should just take my word that we’re doing things the right way.  So, in the months ahead, I will continue to engage with Congress to ensure … that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances …”

Paul: “We will not tolerate secret lists of American citizens who can be killed without trial.”

On illegal immigration:

Rubio: “We need a responsible, permanent solution to the problem of those who are here illegally. But first, we must follow through on the broken promises of the past to secure our borders and enforce our laws.”

On the separation of powers:

Paul: “Montesquieu wrote that there can be no liberty when the executive branch and the legislative branch are combined. Separation of powers is a bedrock principle of our Constitution. We took the President to court over his unconstitutional recess appointments and won. If necessary, we will take him to court again if he attempts to legislate by executive order.”

On school choice:

Paul: “[We should] allow school choice for everyone, rich or poor, white, brown, or black. Let the taxes you pay for education follow each and every student to the school of your choice. ...  When every child can, like the President’s kids, go to the school of their choice, then will the dreams of our children come true!”

Rubio: “We need to give all parents, especially the parents of children with special needs, the opportunity to send their children to the school of their choice.”

On economic liberty:

Rubio: “Politicians here and throughout the world have long promised that more government can make those dreams [of a better life for our children] come true. But we Americans have always known better. From our earliest days, we embraced economic liberty instead.”

Paul: “Only through lower taxes, less regulation and more freedom will the economy begin to grow again.”

On the Bill of Rights:

Paul: “We will fight to defend the entire Bill of Rights from the right to trial by jury to the right to be free from unlawful searches.”

On term limits:

Paul: “If [Congress] will not listen, if [Congress] will not balance the budget, then we should limit their terms.”

Republican Virginia Foxx on the Second Amendment

In a recent editorial published in the Jefferson Post, Congresswoman Foxx (R-NC) expressed her views on the second amendment and recent actions by the government in the wake of the Sandy Hook shootings. The Congresswoman reminds us that the Constitution defines what the federal government cannot do. The second amendment reads, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Foxx recognizes that,

Rep. Virginia Foxx (foxx.house.gov)

“In the wake of devastating tragedies, well-meaning people feel compelled to 'do something' and the government, likewise, to intercede. But good intentions don’t often make good, or constitutional, laws, and they certainly are no match for those set on being lawless.” 

She further cautions that the constitutionally guaranteed right to keep and bear arms should not be infringed by law-makers taking hasty actions after a national tragedy. Congresswoman Foxx assures, 

“As the President’s gun control proposals are introduced and the legislative details they contain come to light, I will scrutinize them from a constitutional perspective.”