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.”