Are drones coming home to roost? Last week, President Obama announced his administration's counterterrorism policy. The question is, will this policy defend our liberties — or destroy them?
If we adhere to our founding principles, we would use drones to fiercely defend our nation from external threats while still protecting our own citizens from their use at home. We would spend less time restricting drone use against foreign enemies, as the president did last week, and more time defining safeguards owed Americans. Instead of clearly defining the distinction between external threats versus citizens, the president concluded the "threshold that we have set for taking lethal action applies to all potential terrorist targets, regardless of whether or not they are American citizens."
The president has already used drones to kill four Americans overseas, and appears poised to extend their use to the homeland, with his administration already having ordered the Federal Aviation Administration to expedite the process of integrating drones into civilian airspace. We must ask ourselves how far the president's commander in chief authority extends.
When our founding generation set out the new presidency's military power in the Constitution, they used amazingly few words: "The President shall be Commander in Chief of the Army and Navy." They were not being cagey. On the contrary, they needed no further description because the term "Commander in Chief" made perfect sense to the patriots of the Revolution — it meant the same powers that Commander in Chief George Washington had exercised to protect them. Accordingly, the Supreme Court often looks to this kind of history in determining the meaning of the Constitution today.
Washington was prepared to crush foreign threats with the full might of the American arsenal. While he obviously lacked modern technology, killing from afar is not a new phenomenon. Washington had sharpshooters and artillery with which he could eliminate enemy targets and a network of spies with which he could target individuals. The fundamental issue is not really about how we kill, but whom.
To Washington, it was the commander in chief's prerogative to take out foreign targets as he saw fit. He had no qualms about shelling the British in Boston or approving a plan to kidnap a son of King George III because, to him, it was the commander's role to vigorously defend Americans from external threats. These precedents support the power of the president to employ drones vigorously against foreign enemies, but when it comes to citizens, our founding principles paint a very different picture.
During the Revolution, 15 to 20 percent of Americans supported the British. John Adams colorfully described these Loyalists as "spiders, toads [and] snakes." At the same time, trampling the rights of even such a "despicable animal" violated the Americans' commitment to republican principles.
Some Loyalists actively took up arms against their nation. These men were shot on the battlefield. Whether in Canada or New Jersey, Washington had no reservations about protecting his people from imminent attack. Other Loyalists, however, were merely suspected of treasonous acts, speaking out against the Revolution, or even serious assassination plots. This distinction between the imminent violent threat and the less imminent lawbreaker was crucial. Washington gunned down the former but protected the rights of the latter.
Perhaps the Loyalist lawbreakers also deserved death, but what was important to Washington was that it was up to the courts to decide that rather than the military. Alexander Hamilton wrote of Washington, "His Excellency desires to avoid nothing more, than the least Encroachment upon the rights of the Citizens."
Take, for example, the Colonial mayor of New York City's purported attempt to poison Washington's dinner peas. Uncovering the plot, Washington broke into Mayor David Mathews' house in the middle of the night. Many expected their general to shoot the perpetrator on the spot. He did not. Washington, ever conscientious of proper procedure, simply arrested him. He left the fates of civilians largely to the discretion of the civil authorities — even if those authorities were not particularly capable. As the wily Mathews awaited trial, he bribed his guards and escaped to British-occupied territory.
Technology will continue to change, but our values and our precedents should not. Washington had the means to mount a targeted surprise attack from a distance, like we do now with drones. However, Washington never ordered his sharpshooters to pick off Mathews nor did he use his spies to assassinate him in the night. Washington refused to adopt a policy of summarily executing Americans. Based on his understanding of the laws of war and his role as the American commander in chief, that would have been a violation of American values.
President Obama declared, "I do not believe it would be constitutional for the government to target and kill any U.S. citizen — with a drone or a shotgun — without due process." He failed to define what process is due and when. Is it acceptable to suspend due process in the case of an imminent threat? Did Anwar al-Awlaki require the immediacy of a charging Loyalist (whom Washington would have gunned down), or was he involved in a plot more akin to that of Mathews? Whose role is it to decide? The president's speech left these questions open.
While it is most certainly within the president's power to muscularly defend the nation from all foreign threats, he must make sure we are protecting America's founding constitutional principles at the same time. Although targeting foreign terrorists is something our Founders would applaud, killing U.S. citizens suspected of crimes is setting us on a slippery slope. What are the limits on our growing government's power over Americans?
Logan Beirne is an Olin Scholar at Yale Law School and the author of "Blood of Tyrants: George Washington and the Forging of the Presidency" (Encounter Books, 2013).