Many Americans were disturbed to find out today some of the legal justifications the White House has offered for the drone strike killings of American citizens. The legal debate over such matters of war and peace and international terrorism can seem remote at first. After all, not many lawyers are making a living in the law of war. The analysis, however, is not remote at all. Indeed, the White House memo cites to many of the same amendments to the Constitution, and the same Supreme Court cases interpreting the amendments, that we cite to and consider every day at our civil rights firm.
The idea that the government can kill an American citizen without due process is neither new nor shocking. The Fourth Amendment to the Constitution protects citizens from unreasonable searches and seizures by the state. Killing a person is a seizure, but it can be reasonable under circumstances where a police officer reasonably believes that a person is about to seriously injure of kill another. The Supreme Court has also held that it is not unreasonable to use deadly force against such a person if he or she is attempting to escape. Of course, if a non deadly use of force is available to capture the person, then it must be used if feasible.
The White House memorandum takes these concepts and applies them to the U.S. effort to kill American citizen “terrorists” overseas. It uses the ordinary framework of Fourth Amendment analysis, but, disturbingly for many civil libertarians, it stretches the meaning of words and concepts meant to narrow the circumstances in which deadly force may be used to the limit, and perhaps beyond the limit. For example, it is assumed in search and seizure law that a police officer can only use deadly force when the threat to his own or another’s life is imminent — meaning it will happen immediately unless the officer uses deadly force. The White House memo seems to agree at first, but then defines “imminent” to mean that if you have been identified as a terrorist involved in operations, it is assumed that any threat you pose to Americans is imminent, because that is what a terrorist is always doing. The memo also seems to assume that if you are an American citizen deemed a terrorist and you are in a country like Pakistan or Yemen, it is safe to assume that you’re capture is not feasible, so deadly force is the only reasonable alternative available to the government.
The light that the White House memo ultimately sheds is on the fact that the words on an old sheet of paper do not mean a thing unless the people faithfully abide by them and fight for them. Everyone should be taking a very serious look at the government’s drone attacks that are killing so many people and decide for themselves whether President Obama’s legal justification for them is faithfully following the Constitution.