Holder, drones, and due process

Judiciary.Senate.gov

Attorney General Eric Holder speaks to the Senate Judiciary Committee at an oversight hearing on March 6, 2013.

In his latest misstep, Attorney General Eric Holder is refusing to rule out the possibility of using armed drones against American citizens within the United States. According to a letter he sent to Senator Rand Paul, as Charles C. W. Cooke noted, Holder said that the use of lethal force would be “entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront,” but might be necessary to stop a “catastrophic attack” like the December 7, 1941, or September 11, 2001, attacks on the homeland. Holder may have the right idea, but because of his misunderstanding of the law and his political tin ear, he is only frightening the American people — though this seems to be the administration’s preferred approach to politics these days.

"Holder’s first mistake is that he thinks that the use of force by drones, no matter where or against whom, is governed by due process." -- John Yoo Holder’s first mistake is that he thinks that the use of force by drones, no matter where or against whom, is governed by due process. Recall the Justice Department white paper on drones, which asserted that lethal force could not be used against al Qaeda members unless they could not be captured, harm to the United States was imminent, and due process allows the attack — concepts that govern law-enforcement officers who might need to shoot an attacking criminal, but have never governed the use of force by the military in wartime. Drones don’t change this equation — the same rules should govern snipers, artillery, aerial, and missile attack, which all also attack the enemy from a distance and often by surprise. But since Holder has made the claim that the drone attacks abroad somehow meet law-enforcement standards, it is an easy step for him to say that those same diluted, weakened standards don’t pose much barrier to the use of drones at home.

Instead, what Holder should have said is that the U.S. would only be able to use drones on U.S. soil under the same conditions it might use military force domestically — to stop an invasion by a foreign country or an attack. And it is not because due process somehow allows it, but because the nation is entitled to use military force against foreign attack. So it is not just December 7 or September 11 that uniquely call for military force because the U.S. is responding to an attack on the nation. What about an invasion, as in the War of 1812, or the Civil War, or, on a smaller scale, a situation like the Mumbai terrorist attacks where groups of heavily armed terrorists attacked high-profile, civilian targets not with airliners, but with light arms. If the federal government can use military force, such as troops or helicopters to stop those kinds of attacks, surely it can use drones. But where Holder and this administration are causing fear is because, if they believe the use of drones now, abroad, meet law-enforcement standards, then they believe they could use drones in similar situations domestically to enforce the laws, not to respond to attack. And that is manifestly wrong as a legal matter as well as mistaken as a matter of policy.

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