I was delighted to see Rand Paul filibuster against domestic drone strikes but am concerned too many observers are failing to see the real problem with this issue. The problem is not drones, the problem is the purported authority of the USG to execute American citizens without due process. Killing an American citizen without trial, whether it is by drone or guillotine, is shocking violation of the fifth amendment (and very likely the fourth and fourteenth, as well).
I understand the concerns of civil libertarians about drones. Drones give the government, and many other organizations, the ability to exploit the relative freedom of the skies to potential spy on us at any moment. But rather than try to simply proscribe one sort of intrusive action-- the use of drones to attack our liberty or lives-- the better approach would be to question the authority of government to spy on or kill us to begin with (private entities can already be held liable in the private courts, and are therefore already accountable for inappropriate use of drones).
Drones have value and there are situations where the USG might carry out its constitutional role properly by employing drones. I can imagine scenarios where the military would use drones overseas, or the Border Patrol might use drones to secure our borders. Let's not narrow our protection of liberty to simply a restriction on drones. I fear that if we gain some sort of prohibition on drones, this will be seen as a concession from the federal government. That if the drones are restricted, then it will be assumed "okay, we can't execute people with drones because people don't like the concept of flying robots, but death in a secret prison is allowable."
An extreme example, yes, but even Senator Paul's filibuster was littered with extremes.
That's the essence of this argument. No one believe that this president will go on a murderous streak against uncountable numbers of Americans. It is the surrender of basic constitutional protections that are at issue here.
There's one other angle to this issue that has not been fully covered that I'd like to address: the notion of the fleeing felon. Common law has long recognized that certain homicides, being necessary for the common good, are lawful. The most common are self-defense and the death penalty. Also allowed is the killing of a felon fleeing from arrest or an attempt to be arrested, who is known or highly likely to commit grave harm to his pursuers to the public. In those instances, officers can kill such a felon and the homicide is justifiable. These proposed drone attacks against American citizens might hit such a standard, provided certain circumstances are met. For example, if a drone were zipping above New York City and observed someone about to detonate a device in Times Square, that individual might be killed by the drone pilot if it is deemed impossible to arrest or otherwise thwart the attack. I think. It depends very much on the circumstances of the situation. But two things are certain: first, there can be no standing kill list, as the Obama Administration proposed, whereby drones are deployed looking to execute specific persons, even if those people are sitting around playing cards and not about to commit an immediate crime. Difficulty in arresting someone is not a reason to kill them. The USG knew Al Capone was a murderer, but Eliot Ness built a case on him, he didn't just shoot him on the street. Secondly, there should be no drones flying around because the existing threats to the United States are not so drastic that we should have to worry about abrogating liberty in the name of security.
It is completely heretical but true that terrorism is not a serious threat to the sovereignty of the United States. During perilous times the government can suspend habeas corpus, draft soldiers, and otherwise act in an exceptional manner. But the danger imagined in the constitution is one of foreign invasion or domestic insurrection. That is not the case today. Despite the talk of a "Global War on Terror," supposedly a phrase abandoned but one I still hear, there is war here. Terrorism consists of criminal acts against the United States by disparate groups. Despite the talk of "an Axis of Evil," there are no countries at war with the United States (well, there was Iraq, but we started, and have mostly, ended that one).
I was very pleased to hear Rand Paul defend liberty so powerfully and equally content to hear the media follow his message. I hope the public at large understands though that his objections to drone strikes are grounded not in some sort of Ludddite hatred of drones, but in the simple relaity that the Executive cannot pass sentence on us without first judicial process.