Constitution Daily

Smart conversation from the National Constitution Center

Can President Obama influence the public debate on drone attacks?

May 22, 2013 by Scott Bomboy


President Barack Obama has agreed to shift control of fatal drone attacks from the CIA to the military. But will this step, and a high-profile speech, change the public debate about the constitutionality of the controversial program?


Predator_droneOn Monday, news started coming out of Washington that the Obama administration would let the Defense Department handle drone operations in Yemen, where the U.S. is engaged in counterterrorism activities with local forces.


The news agency Reuters said it was unclear how drone operations would be handled in Pakistan, where the existence of the program isn’t officially acknowledged.


The moves are seen by some as a way to push the debate about drones, lethal force, and their use on foreign and American citizens into a public forum that can be better managed by the White House.


President Obama will be discussing the rationale for the drone operations in a nationally broadcast speech this Thursday, in his first detailed explanation of the use of drones for counterterrorism efforts. Earlier this year, Attorney General Eric Holder said the president would offer more transparency about drone policy.


On Tuesday, the International Crisis Group published a report that criticized the U.S. and Pakistan for its drone policies.


The nonpartisan group asked the U.S. to “develop a rigorous legal framework for the use of drones that defines clear roles for the executive, legislative and judicial branches and introduces a meaningful level of regular judicial and congressional oversight.”


Those aren’t novel ideas in Washington, where the secret policy decisions involving drones have been a hot-button issue for several years.


The death of al-Qaida leader Anwar al-Awlaki in September 2011, reportedly in a CIA drone strike in Yemen, was the first time a drone attack deliberately targeted and killed an American citizen. It set off a fierce debate about the constitutionality of such an action.


Those issues include whether drone attacks overseas on American citizens violate Fourth Amendment guarantees against unreasonable search and seizure, and the Fifth Amendment’s due process clause.


Attorney General Holder said in March 2012 the administration’s justification for killing U.S. citizens abroad rested on a determination that the person poses an “imminent threat of violent attack.”


Related Link: Read Holder’s entire speech


“The evaluation of whether an individual presents an ‘imminent threat’ incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States,” Holder said.


A Justice Department memo obtained by NBC in February 2013 shed more light on the government’s policy.


A kill order can be issued against an American citizen overseas if they are believed to be “senior operational leaders” of al-Qaida or “an associated force.” There doesn’t need to be “clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo says.


An “informed, high-level” U.S. government official can determine if a targeted American citizen has been “recently” involved in planning a violent attack and “there is  no evidence suggesting that he has renounced or abandoned such activities.”


The New York Times and the American Civil Liberties Union have tried to obtain the Justice Department orders justifying the killing of American citizens with drones, but a judge was unable to compel the Obama administration to release the information.


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U.S. District Court Judge Colleen McMahon said in January, “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.”


In the U.S., one public opinion poll shows widespread support for using drones to kill suspected terrorists overseas, with much less support if the suspect happens to be an American citizen.


A March 2013 Gallup survey showed that while 65 percent of Americans approved the use of drones overseas to kill foreign suspected terrorists, only 41 percent approved of fatal attacks on Americans overseas who are terror suspects. Only 13 percent approved the use of drones against American citizens who are terror suspects living within the U.S.


A Fox News poll in March showed different results, with 60 percent of those polled approving of attacks on U.S. citizens abroad that are suspected terrorists.


In 2012, Pew Research conducted a global survey on how other countries view the U.S. drone policy in Pakistan, Somalia, and Yemen.


Out of 20 major nations, 19 countries disapproved of the American policy. Only in India did more people approve of the U.S. drone attacks than disapprove. And in 17 nations, a majority of people polled disapproved of the U.S. drone program.


Scott Bomboy is the editor-in-chief of the National Constitution Center.


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