Because libertarians have had few reasons to celebrate in recent years, we are eager to claim even the smallest victories. Political commentators on the left and right have opined that Senator Rand Paul achieved a significant victory for the “liberty movement” with his 13-hour denunciation of the Obama Administration’s use of missile-equipped drones last Wednesday. The hashtag #standwithrand trended domestically and internationally. Even left-leaning commentators expressed admiration for Senator Paul.
As a libertarian, I would like to embrace this victory. However, I do not share Senator Paul’s negative assessment of drone policy. In what follows, I will argue that the Obama Administration’s use of drones has, to this point, been morally and constitutionally sound.
As a practical matter, Senator Paul’s speech was intended to delay voting on the nomination of John Brennan to the position of director of the CIA. It was, however, inspired by a long train of perceived abuses. These include (1) the extensive use of drones in Yemen and Afghanistan, despite their proclivity to cause civilian deaths; (2) the extrajudicial killing by drone of Anwar al-Awlaki, an American citizen and al-Qaeda terrorist linked to an attempted bombing of a plane over Detroit; (3) the strictures for targeted killings of citizen and non-citizen enemy combatants set forth in a recently leaked Department of Justice memorandum; and (4) a letter from Attorney General Eric Holder to Senator Paul that suggested that drones could be used on American soil against American citizens in the event of a “catastrophic attack.”
In order to assess whether these actions are moral, it is necessary to reflect upon what the proper role of government is. As a libertarian, I view the government as a blunt tool, useful for one purpose: protecting individuals from physical violence. Human beings can only sustain their lives by using their reason to produce and exchange. To use violence against an individual is immoral, because it prevents individuals from making full use of their reason and thus sustaining their lives. A government is necessary to bar physical force from social relationships because it alone can, in virtue of its monopoly on the initiation of force, provide for the consistent enforcement of a code of coherent, understandable rules. Its protective actions must be rigidly defined, delimited and circumscribed, lest it be a mechanism for initiating the violence it ought to be protecting individuals from.
This understanding of government is reflected in the American Constitution. The Framers of our Constitution recognized the importance of a strong national defense to protect Americans from physical violence as well as the dangers of an unchecked government monopoly on the initiation of force. They provided the executive with a great deal of discretionary authority over the conduct of war. Not only is the president Commander-in-Chief of the armed forces, but he is also made the sole repository of government’s executive power. However, Article I states unequivocally that only Congress may declare war, and grants Congress control over wartime expenditures. If at any time Congress should consider that a given war is no longer in our national interests or is being conducted improperly, it can put an immediate halt to the war or any particular military activity.
In interpreting the Constitution, the Supreme Court has consistently distinguished between the due process requirements that constrain domestic law enforcement on the one hand and military action against enemy combatants on the other. It has also treated American citizens who seek to commit acts of violence on behalf of nations with whom we are at war as enemy combatants. Unless they have actually been detained, enemy combatants are not entitled to due process—they can be killed in combat, while they are fleeing, while they are eating, or even while they are asleep.
The fact that enemy combatants are not entitled to due process does not mean that the executive is entirely unconstrained in making war. The actual uses of military force are governed by Rules of Engagement (ROE) applicable to military forces, treaty provisions, and Status of Forces Agreements (SOFAs) between host countries and foreign nations stationing military forces within. The Constitution does not require these constraints upon executive powers, but so long as they are in effect, they must be obeyed.
Careful analysis reveals that the actions denounced by Senator Paul are moral and constitutional. There is no question that Al-Qaeda, its operatives, and affiliates present a threat to the lives of Americans, and it is thus moral for the Obama Administration to protect Americans against them by any lawful means. As to the constitutionality of the Administration’s drone policy, we have been war with al-Qaeda, its operatives, and its affiliates since 2001, pursuant to a duly enacted congressional declaration of war that has been re-enacted for more than a decade: the Authorization for the Use of Military Force. While the strictures governing the use of drones in the recently-leaked DOJ memo do not satisfy the due process standards that generally constrain governmental deprivations of citizens’ vested rights, this is irrelevant. Those strictures constrain drone use against the subjects of the AUMF—specifically, those “who are senior operational leader[s] of al-Qaida or an associated force.” We have seen that due process standards are not applicable to enemy combatants, citizenship notwithstanding. However difficult it may be to think up a scenario in which, as a matter of prudence, drones ought to be used to target citizen-combatants on American soil, there is no constitutional bar against doing so. As a unanimous Court held in Ex Parte Quirin, “Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of… belligerency.”
Senator Paul’s challenge to the Obama Administration may ultimately strengthen the “liberty movement.” It may inspire those who are already libertarians to hold to their principles and be prepared to defend them with coherent arguments in the face of opposition, as well as attract non-libertarians. But the Obama Administration’s use of drones has, to this point, been moral and constitutional. And so, while I have tremendous respect for his courage and argumentative skill, I cannot stand with Rand.
Evan Bernick is a Legal Associate at a DC think tank and a Legal Fellow with the Becket Fund for Religious Liberty.