Holder, Drones, and Due Process

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. 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.

  1. Mark

    Prof Yoo – I agree with you that the Administration has selected the wrong legal framework to apply here.  However, it also sounds like you would disagree with Senator Paul’s approach as expressed during his filibuster.  Is this correct?

  2. Scarlet Pimpernel

    But is four terrorists preparing a bomb in a garage somewhere similar to insurrection or invasion?

    How about a Federalist solution: get an advisory opinion from the Chief Justice?   Only for cases where the President wants to use drones domestically, before any clear and obvious overt act of force has been made.

  3. Tuck

    Great post.  Makes perfect sense.

  4. Devereaux

    Fine point, Prof. Yoo.

    I am of the opinion that drones most likely have no place within the boundaries of the United States. That would not disallow their usage across the border in Mexico, to observe potential dangers to us. But drones are, in my mind, military things, and so should only be used when the military is being used. And we know that the military is not to be used within the US by posse comitatus

    Time for real police work.

    But I wouldn’t object to the 82nd going into Mexico and cleaning out the cartels. Seems Mexico can’t do the job. Or doesn’t want to.

  5. She
    Scarlet Pimpernel: But is four terrorists preparing a bomb in a garage somewhere similar to insurrection or invasion?

    Perhaps it depends.  After all, if they prepare their weapons in a garage, and then deploy them where they work, with numerous fatal results, perhaps it would be considered just another example of ‘workplace violence . . .’

  6. Larry3435

    I’m not that worried about drones with guns in the American skies.  Drones with cameras are another matter.  Combined with traffic cameras on every street corner and security cameras in every building, it is nearly impossible to take a step without government keeping an eye on you.  

    Ordinarily I think comparisons to Big Brother are overwrought and silly, but this is getting positively creepy.  And concerns over hypothetical killer drones is distracting attention from the real and immediate threat.  It seems the only place you are still entitled to any anonymity is when you show up to vote.

  7. KC Mulville

    These same people insisted that we prosecute the war against terrorists as if it were a criminal matter. They equated war and crime, insisting that the military must abide by the method of proving a case with evidence before taking action against terrorists.

    Now, they’re still equating war and crime … but instead of it being a restriction against the military, it’s now being used to expand the powers of law enforcement.

  8. Spin

    If I were Rick Grimes and could use a drone against the Governor, I would.  

  9. Devereaux
    KC Mulville: These same people insisted that we prosecute the war against terrorists as if it were a criminal matter. They equated war and crime, insisting that the military must abide by the method of proving a case with evidence before taking action against terrorists.

    Now, they’re still equating war and crime … but instead of it being a restriction against the military, it’s now being used to expand the powers of law enforcement. · 17 minutes ago

    Precisely! And it isn’t as if the federal government hasn’t already taken too many powers.

  10. Barbara Kidder
    Devereaux: Fine point, Prof. Yoo.

    I am of the opinion that drones most likely have no placewithin the boundaries of the United States. That would not disallow their usage across the border in Mexico, to observe potential dangers to us. But drones are, in my mind, military things, and so should only be used when the military is being used. And we know that the military is not to be used within the US byposse comitatus. 

    Time for real police work.

    But I wouldn’t object to the 82nd going into Mexico and cleaning out the cartels. Seems Mexico can’t do the job. Or doesn’t want to. · 12 hours ago

    Sadly, attempting to banish the use of drones in the U.S. would be a futile effort to get the genie back in the bottle;  they are here to stay.

    The vital issue before us is to keep ‘a wall of separation’ between our local and state police forces and the (federal) military;  otherwise President Obama will have ushered in a dictatorship!

  11. Pilli

    Folks, this in an “Overton Window” moment.  Prof. Yoo has just accepted that it is just fine to use drones within the U.S. borders in dealing with U.S. citizens…just not to kill them using those drones.

    We are already being subjected to military style checkpoints when we want to travel.  We have to remove clothing, our bags are searched, our papers are checked all thanks to President Bush.  

    Now, we are being told that drones, military weapons, are being used to monitor U.S. citizens.  And that some of those citizens may be executed at a moment’s notice because some bureaucrat says it’s OK.

    I watched Rand Paul last night (thanks again, Blue Yeti).  He questioned again and again whether or not the administration would say the use of drones to kill U.S. citizens would be illegal and un-Constitutional.  I did not hear him or anyone else bring up the fact that drones are being employed within our borders to spy on U.S. citizens.  I admit I was only able to watch after Blue Yeti provided the feed.  Did anyone bring this up earlier in the day?

  12. Tuck
    We’ve already had military operations against US Citizens, starting with George Washington and the Whiskey Rebellion.  Using drones to deal with that kind of threat is nothing remarkable.  That’s Prof. Yoo’s point, and it’s a pretty obvious one. What Sen. Paul was trying to do was limit the use of drones to national security issues, and that’s what the Obama administration refused to do.

    That’s neither a strawman issue, nor grandstanding, and he’s hit a nerve with both sides of the aisle.  We’ve been talking about how Republicans need to stand for something… 

    “…Paul’s wariness at that response resonates with a wide group of people: The same coalition of “constitutional conservatives,” libertarians, and college Republicans that were attracted to the presidential campaigns of Paul’s father… But he also drew plaudits from hawkish Republicans, ACLU liberals, Code Pink anti-war activists, and other people who never embraced the elder Paul. The idea of death-by-drone is more immediate and existential than whether we should re-adopt the gold standard….” “The political genius of Rand Paul’s drone filibuster”

    http://news.yahoo.com/political-genius-rand-pauls-drone-filibuster-070500960.html

  13. drlorentz

    Ted Cruz just mentioned John Yoo and an amicus brief on a murder case in the Senate filibuster. Just thought Mr Yoo might enjoy that.

  14. John Hendrix
    Tuck: Great post.  Makes perfect sense. · 2 hours ago

    Like Tuck said.

  15. Eric Warren

    John, Of course, all the drama could be avoided if our leaders would be leaders and point out that a drone is just a tool and should be legally no different than any other weapon or aircraft (except in the obvious way). They won’t. I can’t say why they won’t, but I can point out what would happen if they did. They would have to admit that business jets are no different than busses and compact cars. Gun control would cease to be something worth fighting about. Building stadiums with public funds would have to be seen as no different than building a bar for a connected barkeep. Healthcare benefits would be treated the same as cash pay.There would be a huge sucking sound as all that power flowed out of Washington followed by all the narcissist office holders.

  16. Eric Warren

    I apologize for the lack of paragraphs, I forgot I needed to go to my office to make a long post.