- - Sunday, February 17, 2013


Fear is now a stronger motivation among the American people than liberty and justice. Motivated by fear, the American public looks the other way while government officials use drones to kill U.S. citizens. Americans are told drones must be used in the name of security. Some elected officials also sincerely fear another terrorist attack on the United States from Islamic terrorists. While that fear is justified, allowing it to overwhelm constitutional limitations on executive and military authority does more damage than any terrorist ever could. If the Constitution is pushed aside in the name of security due to fear, then we have already destroyed one of the things that makes the United States worth protecting.

President Obama and his administration have tried to justify using military drones to kill U.S. citizens involved in operations against the United States overseas. The president’s nominee to head the CIA, John Brennan, does not deny that such strikes could even be carried out within the United States against U.S. citizens.

The Constitution and the U.S. Supreme Court speak clearly about depriving a person of his life or liberty without due process of the law. Amendments Four through Eight to the Constitution deal explicitly with what the government can and cannot do to deprive someone of their life or liberty. A right to jury trial in all criminal cases is guaranteed by the Sixth Amendment, and seems like it should apply in the context of drone strikes.

Part of the constitutional defense of drone strikes — which do not require a jury trial or any other constitutionally defined component of due process — relies on a loose interpretation of the Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.” In this case, “war” and “public danger” are being irresponsibly used as loopholes.

The president has offered an olive branch to pacify the public and other opponents by saying there should be some sort of oversight panel to decide when these strikes can be carried out. These panels already exist, however. They are called juries — grand juries — and they are presided over by judges.

If we need a new panel for anything, it is to decide what constitutes war. When the term “war” is loosely defined and can be applied whenever legal and political cover are needed for an unconstitutional use of executive and military authority, it is too late for oversight.

If Congress is unwilling or unable to determine what constitutes a war, the oversight panel should operate only when we decide what war is and when we are engaged in it. This cannot be done exclusively by military personnel or the intelligence community, for now the weapons are being aimed at U.S. citizens. Of course, if Congress were required to declare war before warlike actions can be undertaken — another constitutional provision so long ago abandoned that it now seems like a quaint memory of a time when representative government meant something — this would not be a problem.

The United States is at risk of losing one of the components of its greatness if the Constitution is ignored for expediency in pursuit of greater security. If the Constitution means anything, it is the guarantee that the lives and liberty of U.S. citizens cannot be denied without due process of law.

Kyle Scott is an American politics and constitutional law professor at the University of Houston.



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