Last May, President Barack Obama laid out a revised drone policy, a plan to curtail the use of targeted strikes against foreign threats.
"I do not believe it would be constitutional for the government to target and kill any U.S. citizen with a drone or a shotgun without due process, nor should any president deploy armed drones over U.S. soil," the president told his audience at National Defense University. "But when a U.S. citizen goes abroad to wage a war against America and is actively plotting to kill U.S. citizens—and when neither the United States or our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a SWAT team."
President Obama hoped to prohibit the CIA from conducting drone strikes against American citizens abroad, leaving that responsibility in the hands of the Pentagon. Last month, Congress refused the president's wishes, but additional new guidelines—which state that drone strikes may only be used against American citizens "to prevent or stop attacks against U.S. persons, and even then, only when capture is not feasible and no other reasonable alternatives exist to address the threat effectively"—remain.
Now, according to the Associated Press, the Obama Administration has discovered the whereabouts of an American citizen member of al-Qaeda. The suspect is plotting terrorist attacks from an undisclosed country, a country that prohibits the U.S. military from conducting actions on its soil. The Obama Administration finds itself in a bind.
"The CIA drones watching him cannot strike because he's a U.S. citizen. The Pentagon drones that could are barred from the country where he's hiding, and the Justice Department has not yet finished building a case against him," the AP writes.
When, if ever, is it appropriate to use a drone strike to kill American citizens abroad? Karen Greenberg, director of the Center on National Security at Fordham Law School, examines this question and the future of the U.S. drone program.
"What President Obama has attempted to do is impose the rule of law, both international and domestic, on lethal attacks via the use of drones," Greenberg says. "The same rhetoric that immediately followed 9/11—security versus liberty, security versus the rule of law—persisted to this day for reasons that you can understand, which is that it's better to do things behind closed doors. It's better to do things without any kind of oversight. It's easier, but it's not right, and it doesn't follow the rule of law. That's what President Obama's dilemma is right now."
Drone attacks and the drone command structure fall within the purview of the Pentagon and the CIA, and Greenberg says that having these programs under the authority of these bodies can hinder due process—but it doesn't have to.
"There are different authorities, different oversight mechanisms for both the CIA and the Pentagon, and that's really what's at issue here—who gets to do what and in what kind of covert way," she says. "But the real issue is does the United States want to be using lethal drone strikes, and today the issue is against Americans."
At the center of the dilemma of using drone strikes against Americans, says Greenberg, is the issue of crime versus war. She says that the real question is whether this kind of drone strike is being used in place of the natural role of law enforcement—is a drone used because a nation was unable to capture someone? When considering these gray areas, Greenberg says one must also consider the context. In the "War on Terror," can the argument be made that people can be plotting anywhere, outside of an active war zone, thus legitimizing this action?
"It depends on how you define it—are we in a global war against terror and is there a global battlefield the way the Bush Administration argued and the way the Obama Administration accepts, but doesn't want to use that term?" asks Greenberg. "Many people would say we are. But the United States doesn't have that specific authority—or at least I would argue they didn't. The authorization for the use of military force is limited, even though it's broad, it's limited to al-Qaeda, the Taliban, and it's morphed into associated forces. But what is an associated force? Is it someone who has the same ideology? It is a grey area, and nobody's been able to clarify it in a way that has enough buy-in from both sides that it can move forward without this kind of controversy."
Greenberg adds that diplomatic efforts behind closed doors complicate the question of the use of American drones within the borders of sovereign nations that prohibit the U.S. military from conducting actions on its soil. A nation may not be able to publicly acknowledge its acceptance of the use of drones on its soil, but can do so privately through diplomatic channels.
"That's one of the things the United States cannot admit to because it harms the regimes abroad, and that's yet another gray area," she says. "That's why the debate between the convert activities of the CIA and the more overt activities of the Pentagon get caught in the cross hairs here."
Is an American citizen that is engaged in suspected terrorist actions just an easy example to be made of for the United States?
"The American citizen issue raises the hackles of just about everybody," says Greenberg. "It's still something to push back against, and if you can't push back there then you certainly can't push back against the longer term. The issue of a non-American being targeted in a drone strike is that the backlash in the long-run, either from the country itself or from the tribe or from the group they associated with could be immense, and has proven to be detrimental to the United States. But when it comes to an American citizen, it sort of gets everybody's attention in a way that attention to non-Americans does not happen in the same way."
Greenberg adds that the discussion of killing an American citizen suspected of terrorism abroad really comes down to one question.
"It's about the role of intelligence and how much can happen behind closed doors in the Untied States without the approval or the knowing of the American public," she says.