The recent leak of a Department of Justice white paper on the legal justification for the use of drones to execute American citizens abroad accused of terrorism raises some very important constitutional and moral issues. Politicians should not decide the crime and the punishment for American citizens here or abroad. A trial by jury with a judge is a right to be prized by American citizens.
Now, if you join al Qaeda, bear arms and attack U.S. forces, no one will argue that you still have a right to a trial. In the heat of battle, everyone understands that those launching grenades will have no jurisprudence.
Yet, if you leave the country and take up arms or encourage others to support violence, or call for America’s destruction, you are a traitor. If you are a traitor, you deserve to be fired on by an armed drone.
If you’re launching a missile on U.S. troops, if you are launching a missile toward the United States, if you are hijacking a plane, if you are setting off a bomb, if you are leveling an AK-47 at any one of our soldiers — by all means and with great expedition, we will drop a drone bomb on you. No one is arguing against employing immediate and lethal force against anyone whose finger approaches a trigger.
President Obama’s drone killing goes a great deal further, however. Mr. Obama tells us that an “imminent threat” need not be “immediate.” What? Only a group of lawyers could argue that imminent really means the opposite.
The most infamous American killed by drone was Anwar al-Awlaki. He was targeted for months — long enough and publicly enough that his father actually protested in court but was not heard.
Now, I have no sympathy for al-Awlaki. From what I’ve read in the lay press, I have concluded that he was a traitor. As a juror, I would have voted to convict him of treason. My question is, since his targeting was public and prolonged, why did we not try him for treason? If he didn’t show up, we could have tried him in absentia. If secret testimony was needed, it could have been heard before the Foreign Intelligence Surveillance Court.
Why should we do all this for a traitor? Because we’re Americans. Because we prize our belief in trial by jury overseen by a judge. It is in the Bill of Rights and the Constitution. Because what makes us distinctly American is our belief in adjudicated justice. Because what the terrorists wish to destroy is exactly that freedom.
Moreover, a few weeks after we killed al-Awlaki, we killed his 16-year-old son with a drone strike. Can a 16-year-old be a terrorist or a traitor? Absolutely, but am I the only American who believes that this 16-year-old also deserved the contemplation of a jury and a judge?
The president is a politician. He is a politician from a party opposite mine, but my opposition to his drone killing is an opposition to any politician, Republican or Democrat, becoming an imperial executioner-in-chief. No politician should ever be granted that power.
The Constitution provides for handling traitors. In fact, treason is one of four crimes that are truly federal under the Constitution.
I have no sympathy for Americans who denounce their country — denounce their citizenship — to fight against us. Similarly, I have no sympathy for murderers and rapists within the United States. I do, however, insist that the murderers and rapists we punish be guilty and found guilty by a jury and a judge.
Why? Why can we not just kill Americans who dissent? For one, because our government has already shown recklessness in defining who is a terrorist. Fusion centers in Missouri defined pro-life and pro-border-security hawks as potential terrorists. The Department of Justice produced a list of characteristics of terrorists that we should report to the government: people missing fingers; people who’ve changed the color of their hair; people who like to pay in cash; people who have more than seven days of food; and people who buy weatherized ammunition.
Mr. Obama’s pick for drone-killer-in-chief, John O. Brennan, says the 2001 authorization for military force after Sept. 11 authorizes him to kill American citizens, and it “does not contain a geographical limitation.”
No geographical limitation? Our border, one would hope, is a geographical limitation that would limit drone strikes. Will anyone on the committee ask such an impertinent but necessary question?
Do I think Mr. Brennan or Mr. Obama are bad men who would kill innocent Americans for their political beliefs? No. Yet James Madison warned that government’s power should be limited, because we can’t guarantee that government will always be comprised of angels.
We separated the police power from the judicial power for a very important reason. We didn’t want policemen to accuse, charge, arrest, convict and punish. Jurisprudence since the time of Morgan of Glamorgan, Prince of Wales, in 725 A.D., has wished to have separate judicial review of accusations to check the power of the king.
Certainly, if history has warned that police power should be separated from judicial power, history would be appalled at politicians accusing (not charging, not arresting and not convicting) and going straight to killing American citizens without so much as a passing thought to the idea of consulting a judge or a jury.
Sen. Rand Paul, Kentucky Republican, is a member of the Senate Foreign Relations and Homeland Security committees.
