How International Drone Policy Shapes Domestic Drone Use
For laws to be effective, they must have ascertainable limits.
Clear limits are determined by definitions contained within laws and the meanings we attribute to words within those definitions. If international law can be violated through manipulating key conflict definitions, constitutional parameters can be similarly manipulated to encroach on the civil liberties of Americans right here at home.
To think that the drone policy overseas has no impact on local policies is misguided, as the “permanent ‘war on terror’ sets precedents that slowly find their way to be used domestically for largely the same reasons they are deployed abroad.”
When it comes to foreign policy, the entire drone narrative has been fraught with ambiguous language, making it difficult for the American public to pin down President Obama’s policy. For example, a few weeks ago, the Obama Administration heeded the bi-partisan demand for more information and released a statement [PDF] saying that the president does not have the authority to kill “an American not engaged in combat on American soil.” However, what does “not engaged in” truly mean?
Then there were the targeted killing “white papers” [PDF]; a thicket of flimsy and ill-defined terms intended to obfuscate any legal criticism of the president’s actions. The document raised more questions than it answered: what does it mean to be a “senior” al Qaeda official? What constitutes “operational?” What is “imminent?” What establishes a “threat?” Who is considered a “high-level official” permitted to order the drone strike? What is the criterion for “feasible?”
An imminent threat used to be someone who represented a clear and present danger. Now it is someone who appears dangerous. The new “imminent threat” of violence does not require the US to have clear evidence that an attack on the US will take place in the immediate future. Impendency can be decided on the whim of the president. While every definition has parameters, those parameters are usually ascertainable. Here, the definition of impendency is so broad the limits are essentially meaningless.
Collateral damage used to be defined as anyone who was not a target — now it is only women and children. The narrowed definition of “collateral damage” renders “all military-age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.” In effect, we determine whether you were innocent after we kill you. There is justice, after all. In essence, there is a presumption of guilt attached to individuals in physical proximity of al Qaeda members. That the proximity could be due to a number of factors (rescue work, journalism, research and so on) other than involvement in terrorist activities seems to be an irrelevant detail to the administration.
There is a power in the use of such partisan language that tends “to embed itself in everyday discourse and, thus, appear natural, neutral and objective. There are “good guys” and “bad guys”; there is “us” versus “them.” Who would not want to kill the “bad guys?” Undoubtedly, there are some individuals that should be killed — but, the sweeping and dangerous generalizations occurring at the highest government level make it difficult to tell whom.
The result is a fractured and ambiguous policy. A recently leaked White House document, acquired by McClatchy, reveals that “at least 265 of up to 482 people who the US intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaeda leaders but instead were ‘assessed’ as Afghan, Pakistani and unknown extremists.”
Americans must demand concrete definitions which provide us with ascertainable limits of the international drone program. While the establishment of concrete definitions would not eradicate all inconsistencies in how the US deals with terror threats, it would be a step towards transparency. Details would give the drone program a legitimacy it currently lacks. It would allow us to retroactively analyze how accurate our defense programs are, assess and address policy concerns, truthfully research how our relationships with other countries are developing as a result of such programs and allow families who have been wronged to seek redress and compensation. Without any determinable guidelines, there can be neither objective evaluation nor progress.
Failing to ask for ascertainable limits of the international drone program sends one of two messages: 1) we are not paying attention to how the government is manipulating laws, or 2) we know, but we do not care. Either option sets the stage for the manipulation of laws at home. When it comes to the issue of domestic drones, the foreign drone policy sets the tone. In the context of criminal justice, specifically the “war on terror,” the use of domestic drones can quickly strip away one’s civil liberties under the guise of national security.
The Fourth Amendment safeguards the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures” by the government. This means police need a warrant to search a person or their property, with a few exceptions. Whether government surveillance constitutes a “search” depends upon the reasonableness test set forth in Justice Harlan’s concurrence in Katz v. US. The test considers whether the person has a subjective expectation of privacy in the area to be searched and whether society is prepared to deem that expectation reasonable. One’s home always falls within the scope of protected areas under the Fourth Amendment.
One exception to the Fourth Amendment warrant requirement, explained in National Treasury Employees Union v. Von Rabb, is the “special needs” doctrine which requires the government to demonstrate that the government interest outweighs the intrusion. The “special needs” exception could give law enforcement a free pass to monitor specific homes when looking for domestic terror threats. Without written guidelines, law enforcement could justify any number of surveillance initiatives under the pretext of fighting the “war on terror.” In addition, given the political and social stigmatization of Islam, the potential for misuse of the “special needs” exception to disproportionately target American Muslims is great. Last year’s unlawful surveillance of Muslims throughout New York by the New York Police Department is evidence of this risk.
It is imperative to have clear and unambiguous written policies regarding the parameters of domestic drone use. As Noam Chomsky famously stated, we must engage in “intellectual self-defense” by staying informed. Specifically, we must scrutinize words, their meanings and their implications. Words create perceptions which form the basis for government policy, create narratives that contribute to public complacency and most importantly, dictate the scope of laws.
Samar Warsi is an ISPU Legal Fellow and a Senior Volunteer Attorney for the Muslim Civil Liberties Union. She holds a B.A. in Political Science from McMaster University and graduated with a J.D. from the Oklahoma City University School of Law. She is admitted to practice in the state bar of Texas.
This article was published by JURIST on April 15, 2013. Read it here.