Glawe: The powers that be

Michael Glawe

Hypothetical scenarios are too often held hostage to the wild fringes of imagination. I am sure Rand Paul’s misleading and outlandish comments about the Obama administration’s use of the drone program are subject to such presumptions. But, credit is due, as Paul’s 13-hour filibuster of John Brennan’s CIA nomination has brought forth a national discussion on the delicate balance between security and rights.

The question about the constitutionality of the government’s use of drones to eliminate an American citizen arose after a rather vague and open-ended statement released by Attorney General Eric Holder. Specifically, the ending of the statement (“It is possible, I suppose” for one to imagine a scenario where the use of lethal force within the U.S. may be “necessary to protect the homeland”) has people crying “Orwell! Orwell!”

As Paul rebukes, “When the president responds that, ‘I haven’t killed any Americans yet at home and that I don’t intend to do so, but I might,’ it’s incredibly alarming, and really goes against his oath of office.”

Though Holder explicitly detailed that the president does not have the authority to use a weaponized drone to kill an American citizen on U.S. soil, we are left to discuss the circumstances under which the executive branch would feel compelled to use lethal action.

As the Department of Justice has noted, the President has constitutional authority to defend the nation against an “imminent attack.” The Supreme Court has upheld this authority, as well as what constitutes “necessary force.” This concept is perhaps best summarized in the Supreme Court case Tennessee v. Garner, which outlines police authority in the event of an imminent threat (such as a suspect drawing a gun on an officer).

Even under international law, a country such as the United States has a right to collectively defend itself (see UN Charter, Chapter 7, Article 51). That collective defense is presided over by our representatives.

Unraveling this strand of judicial thinking inevitably leads one to ask, “What, after all, is an ‘imminent attack?’” Even if it is a question of semantics, who or what body defines the imminency of the attack?

I am reminded of the death of senior operational leader of the al-Qaida terrorist group, Anwar al-Awlaki, who was an American citizen. It was left up to the Office of Legal Counsel, headed by lawyers David Barron and Martin Lederman, to determine whether the United States could lawfully eliminate al-Awlaki.

The drafting of a legal justification required Barron and Lederman to combine comprehensive CIA reports while maneuvering through the thicket of international and national laws. For instance, a statute making the killing of citizens abroad illegal was considered to apply to domestic murder, rather than on issues of national security.

Even more so, the team very cleverly advised the president to execute the killing through the CIA rather than the Pentagon, which would have required congressional authorization. The CIA, a civilian agency, operates more under the notion of “self-defense.”

Thus, defending the country against known traitors such as al-Awlaki was found justifiable under the constitutional authority of the executive branch.

Still, we are only on the precipice of defining an “imminent threat.” Al-Awlaki was surely a threat, and I certainly believe that he forfeited his rights when declaring himself an enemy of the United States, but this does not mean the powers of the executive branch, in eliminating an enemy, are limitless.

For now, we can only imagine hypothetical scenarios that would grant the President the authority to execute a citizen on U.S. soil. Eric Holder suggests that the possibility of a 9/11 or Pearl Harbor event would justify such actions. After all, how will we initiate due process when the suspect has hijacked a plane bound for New York?

The death of Anwar al-Awlaki gives us an indication of how far the Obama administration will go to define an “imminent threat.” Inciting violence against the United States and recruiting terrorists to kill Americans, as Awlaki did, will not be tolerated.

Paul’s tirade has forced us to re-examine the limits of due process and the use of deadly new technology in a world increasingly dominated not by evil-doing countries such as Iran, but by amorphous blobs of conspirators.

The rise of terrorism has placed us in a tender position, where the preservation of law may require the violation of it. As President Lincoln mused when he suspended habeas corpus in the midst of civil war, “Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?”


Michael Glawe is a junior in mathematics and economics from New Ulm, Minn.