The double standard of objections to drone strikes against US citizens

On Monday, NBC News released a bombshell memo from the US Department of Justice justifying the killing of American citizens who are believed to be senior al-Qaida leaders. That in itself is not necessarily news – the US famously used a drone strike to kill its own citizens, Anwar al-Awlaki and Samir Khan, in 2011. The memo, though, is attracting much attention in large part because it reveals that the Obama administration believes such actions are justified even if there is no intelligence of an active plot to attack the US. The target must still pose an ‘imminent’ threat, but that condition can be fulfilled so long as there is evidence the target is “personally and continually involved in planning terrorist attacks against the US.” This stretches to the breaking point the plausibility of the government’s claim that such drone strikes are acts of self-defense analogous to police killing an assailant to protect an innocent. But I’ve found a tacit assumption in the debate over this memo rather objectionable: it is more legitimate for the US government to kill a foreigner than a US citizen. This assumption is thoroughly flawed, a sort of double standard that makes many commenters recoil at the assassination of al-Awlaki and Khan but shrug off the numerous other lethal drone strikes against senior al-Qaida operatives. Still, the concerns that motivate the double standard are worth taking seriously and can help shed light on what makes the memo so disturbing.  

I take it some of the reasoning behind the double standard is legal – US citizens abroad can enjoy certain constitutional protections not afforded to foreigners abroad. I’m no constitutional scholar and what I say will be mostly off the cuff, but this line of reasoning is quite dubious to the untrained eye. I take it the main legal difficulties with targeted killings are that they arguably deny due process and are unreasonable seizures (of a person’s life), both violations of rights guaranteed in the US Constitution. One might think this is only a difficulty for US citizens, but the Constitution does not specify citizenship when eliciting requirements of due process and reasonable seizures. Foreign nationals in the US are thus generally given the same constitutional protections as US citizens. Foreign nationals abroad, of course, are not directly subject to the US Constitution, and so the aforementioned protections could be said to be inapplicable. Two things in response: A) Similarly, US citizens abroad are not directly protected by the US Constitution, so being outside US boarders cannot justify differential treatment of US citizens vs. foreigners; and B) When the US uses drone strikes to bomb a foreign country it is arguably imposing its sovereignty on the residents of that country; we would reasonably want any such imposition to be subject to constitutional protections. The Justice Department memo appears to concede as much when it comes to US citizens abroad, but it appears arbitrary not to extend such rights to any residents who are affected by the US’s actions.

The moral case for such a differentiation is even weaker than the legal case. When the US government is deciding whether to kill an al-Qaida operative abroad, what moral difference does it make that they have US citizenship? It is implausible and contrary to notions of general moral equality that US citizens’ interests matter more than foreigners’. US citizens are not more morally worthy than non-citizens. A defender of the double standard might instead propose a mild form of statism: any government can reasonably prioritize its own citizens’ interests over those of foreigners. So, perhaps it is reasonable for the US government to spend more resources to preserve the lives of its own citizens than those of foreigners. However, such a principle does not imply that it is more permissible to kill foreigners than one’s own citizens. That mild statism is a principle of resource allocation, not a principle of the use of lethal force. Expanding the statist principle to lethal force would have dire moral consequences, indeed – for instance, we would have to say that a Us police officer who shot and killed an innocent foreigner did less wrong than a police officer who shot and killed a US citizen.

I suspect the real consternation behind the Obama administration’s willingness to use drone strikes to kill US citizens without trial is personal, not legal or moral. Despite the recent surge of libertarian anti-governmental sentiment from groups like the tea party (and the proposals of some philosophers), people still generally accept the legitimacy of the government’s use of force on its citizens. Part of this acceptance is the trust that the government will not simply decide one day it does not like us and kill us in our sleep. True, in many areas of the US we could be tried and executed, but the key part of that is the trial. Constitutional protections like due process are there to ensure the government does not overstep its authority and employ unjustifiable force on its citizenry. Perhaps many accept drone strikes on foreigners abroad because those foreigners are seen as Others – not like us, and so violations of their rights poses little threat to our own. But US citizens, even members of al-Qaida, are seen differently. They’re more like us, and if the government can just kill them off without trial or oversight, it makes our own position more precarious.

This line of thought (foreigners as Others and of less concern) is deeply problematic, but it nevertheless indicates a real issue with using drone strikes to kill targets without trial: it erodes our confidence in the government’s commitment to the rule of law and protecting the accused. Naturally, defenders of the targeted killings will respond, ‘No need to worry about that – as long as you’re not an imminent the US, you’re safe!’ But as the memo reveals, the US government’s understanding of imminent threat is rather vague and confusing – one can be classified as an imminent threat even if there is no evidence of an actual threat or conspiracy. And though the memo is restricted to al-Qaida, in principle it could be extended to any group that is generally opposed to the US government.

I don’t generally buy into slippery slope arguments, and I don’t believe that the Obama administration is soon going to start ordering drone strikes on (say) anarchist activists, but there is something very disturbing about a doctrine that tosses out some of our most fundamental constitutional protections by executive fiat in the face of a supposedly novel threat. Al-Qaida is dangerous and constantly plotting, to be sure, but so are drug lords and radical separatists – and we seem to survive without using drone strikes against them. Benjamin Franklin is right on the money here: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

  • Facebook
  • Twitter
  • Reddit

6 Responses to The double standard of objections to drone strikes against US citizens

  • Bob says:

    I suspect that there are many different sets of assumptions that lead people to be especially alarmed at the privileges that the Justice Department is claiming in its treatment of US citizens. But speaking for myself and others whose opinions I think I understand correctly, the main reason for the “double standard” that you object to is indeed basically legal and procedural. Quite apart from whether there is any morally relevant difference between citizens and non-citizens (you seem pretty satisfied that there isn’t, while I’m not so sure, but my doubts don’t extend too far and are in any case irrelevant to my main point), citizens do in fact have different legal standing and different legal rights, and the worry is that policies like this one flout those rights and set a dangerous precedent for how the executive branch thinks it can act with regard to citizens. Your objections here are pretty feeble. US citizens abroad are indeed protected by the US constitution, which governs the acts and legal enactments of governments and individuals within the US; the US of course does not have the authority to protect my right to free speech when I am in China, but it has no more right to violate that right when I am in China than when I am in Arkansas, and as a matter of fact the US government makes efforts to protect its citizens abroad. As for “imposing its sovereignty,” I’m not even sure what that’s supposed to mean, but if it’s supposed to entail that people gain the rights of citizens when the US enters into military engagement with them, then it’s legally a non-starter.

    My basic point is just that one can be especially concerned about this policy toward citizens even if one thinks that the US government ought to regard all human beings impartially. If that’s what you think, then, unless you are perverse, you want the US to extend the rights and protections currently recognized for it citizens to others, not to circumvent or scale back the rights it grants to citizens so that it impartially violates the rights of all human beings. One can, and many do, object to drone strikes quite generally while also being particularly troubled, and troubled for special reasons, that the current administration is willing to overlook the legal requirements of its treatment of its own citizens. Your armchair psychological theorizing about the motives of people who object to this policy is therefore pretty groundless and, like most instances of its kind, contributes nothing of value to thought about the issue. Your penultimate paragraph says about all that needs to be said. The rule of law and protection of the accused are supposed to extend to all US citizens. However ideal it might be for them to extend to everybody, it is especially worrisome that the Bush administration isn’t the only one that is apparently unwilling to extend them even to the citizens that they are legally supposed to protect.

    • Owen Schaefer says:

      Bob –

      Thanks for the thoughtful comment. The Justice Department and many commentators may indeed share your legal view, that the US Constitution protects US citizens abroad from harm by the US government but not foreign nationals. In some cases, even the Supreme Court does – see, e.g., US v. Verdugo-Urquidez (though that applied only to the fourth, not the fifth amendment). However, I am not so certain. Again, the fourth and fifth amendments to the Constitution, which protection from unreasonable searches and seizures and due process, respectively, do not specify US citizenship. This implies, as I think we’ll all agree, that both US citizens and non-citizens within the US’s borders are entitled to these protections. So, the question is, why the differential treatment at our boarders? The constitution does not specify special privileges for citizens in these sorts of matters (though it does in other areas, e.g., elected office), so I don’t see where the legal justification for such differential treatment comes from.

      It should be noted that this question only applies when the US is taking action abroad (there might be some vague cases of action vs. failure to act, but drone strikes are not one of them) – as you say, the protections pertain to (say) the US infringing on someone’s free speech in China, not to the Chinese government’s infringement of free speech within its borders. So we need not worry about an explosion of US law into matters internal to foreign nations. The basic idea is, wherever and whenever the US government acts, it is constituted by and thus constrained by the US constitution. So, yes, I do believe those protections should be extended to foreign nationals directly and intentionally harmed by the US government, especially when the US government decides to take someone’s life into its own hands. The US government has not, of course, always lived up to this standard (including in the killing of al-Awlaki and Khan) but it should – both legally and, for the most part, morally. Part of those constraints on the US’s actions are the fourth and fifth amendments. For a more thorough defense of this framework, see ‘The Constitution Abroad’, 1989, by Jules Lobel, in The American Journal of International Law, 83(4), pp. 871-879. The case for such constraints may be more or less compelling in different cases, but I think they become stronger when the US decides to violate the sovereignty of a given country (e.g., via domestically-unauthorized drone strikes), thus substituting domestic sovereign power with the US government’s own. It’s unclear whether Yemen authorized the killing of al-Awlaki and Khan and so whether sovereignty was indeed violated in this case, but as actions in Pakistan have shown, the US government appears to pay very little heed to sovereignty concerns when ordering drone strikes.

      I confess I might have gone off the deep end with the ‘armchair psychologizing’ of people’s objections to the drone strikes. Perhaps most people’s reasoning is really legalistic – whatever the constitutional merits, they believe that US citizens have special rights against action by the government and so targeted killing of US citizens by the US government is particularly problematic. Still, I believe some of what I said about attitudes towards foreigners vs. fellow-citizens is on-point. It’s the same sort of reason that Americans will be much more interested in (and distressed by) news of a US (or even Western) tourist who was killed abroad than, say, a Chinese tourist. It hits closer to home, and it’s a bit more plausible that ‘it could have been me’. And I think that fear is real, that the government’s power to kill at will currently being used against al-Qaida could be turned, by a more nefarious leader, towards other, more innocuous targets. It wasn’t so long ago that Nixon grossly abused his power and the constitution to target political opponents, and while I don’t believe this power to kill will be abused so maliciously, it is troubling that – with a little tweaking of definitions of ‘threat’ – it could be.

    • Ruby says:

      This is killing, which goes against the Constitution, but our President thinks going against the Constitution is fine. He has done so on several occassions and the Congress lets him keep doing it. Why are they so afraid of the President that they will not hold him responsible for his actions?

  • Ian says:

    Your implied assumptions that distance is a factor in moral discourse and hence matters in peoples actions unless countered by other localising facets is interesting but clearly so widely evidenced that it is generally ignored.

    What seems more important in the situation you describe is the ‘if there is no evidence to the contrary’ portion of the described decision process. Given the original motivations and the situation these factors are part of; What requirement(s) exist to find out if the original evidence is accurate or if an opinion has changed in any way? (Many scholars and politicians take an interest in communism during their youth, but that interest may have waned as they age.)

    If the actual intended outcome is to protect US lives when physically abroad, that duality supports your view, but surely illustrates the views/fears of a particular community and stage of development, deeply troubling as that may be, more than anything else.

  • Ulf says:
  • Ian says:

    Ulf -

    Thus anarchism contains a certain odd balance between tolerance of alternatives and intolerance for those who would limit them. As we will also see, these orientations begin to suggest the shape that social relationships, and even social justice, might take within anarchist arrangements.
    Ferrell, J., 1999: Anarchist Criminology and Social Justice. Social justice/criminal justice : the maturation of critical theory in law, crime, and deviance,B. A. Arrigo, Ed., West/Wadsworth, 95.

    We can foresee a continuum of possible results; a minimalist position would have it that the escalating or spiraling nature of the emotions may have a heightened probability of being arrested or suspended whereby “cooler heads” may then prevail. A middle position would see the beginnings of an understanding of the external forces at play (structural sources of alienation, diminished life chances, assaults on moral self-worth, and instrumental rhetoric.) A maximalist position would see the conflict as an opportunity for the development of a critical consciousness and for the stabilization of a “border pedagogy” (Giroux, 1992). [Giroux, H. (1992). Border pedagogy. New York: Routledge.] (See Henry and Milovanovic, 1996, 22-23), or turned back on themselves providing the energy and focus for the development of a critically aware consciousness. After all, permanent consensus on most issues that confront us is a highly dubious ideal.
    Milovanovic, D., 1999: Catastrophe Theory, Discourse, and Conflict Resolution. Generating the “Third Way”. Social justice/criminal justice : the maturation of critical theory in law, crime, and deviance, B. A. Arrigo, Ed., West/Wadsworth, 220.

Recent Comments

Authors

Affiliations