Obama's Domestic Drone Standard Is Now Tighter Than Rand Paul's

There should be no armed drones over the U.S. under any president, Obama says.



President Obama's speech at the National Defense University Thursday offered a nuanced defense of the U.S. drone program against Islamic militants in hard-to-reach areas of the world as the best of a bad set of military options for fighting those who want to kill American civilians. The drone program costs fewer American military and foreign civilian lives than would use of more conventional weapons or strategies, the president said, but still should only be used when the "detention and prosecution of terrorists" is "foreclosed" as an approach.

The president also laid out what the standard should be for domestic use of armed but unmanned aerial vehicles: They should not be used.

"For the record, 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," Obama said. "Nor should any president deploy armed drones over U.S. soil."

Let me repeat the second part of that quote, since this has been such a controversial and much-discussed topic: "Nor should any president deploy armed drones over U.S. soil."

That's the standard. No armed drones over U.S. soil.

Obama's justification for the use of drones overseas involved an array of circumstances, but significant among the factors he listed were the geographic and geopolitical challenges in using conventional force in "remote tribal regions," "caves and walled compounds," and "empty deserts and rugged mountains" where "the state has only the most tenuous reach" and the presence of conventional or special forces could trigger "a firefight with surrounding tribal communities that pose no threat to us" or "a major international crisis."

None of that describes the United States.

Obama's articulated standard for the domestic use of armed drones -- no president should use them -- is tougher than the one the president's Republican critics in the U.S. Senate had been demanding.

Sen. Ted Cruz of Texas has suggested an imminent threat standard for the domestic use of armed drones, saying in March, "It is unequivocal that if the U.S. government were to use a drone to take the life of a U.S. citizen on U.S. soil and that individual did not pose an imminent threat that would be a deprivation of life without due process."

Sen. Rand Paul of Kentucky, who in March held a nearly 13-hour filibuster of John Brennan's nomination to be CIA director over the domestic drone-deployment question, endorsed a similar imminent threat standard in remarks in April.

"I've never argued against any technology being used when you have an imminent threat, an active crime going on. If someone comes out of a liquor store with a weapon and fifty dollars in cash, I don't care if a drone kills him or a policeman kills him," Paul told Fox Business's Neil Cavuto.

"If there's a killer on the loose in a neighborhood, I'm not against drones being used," he added.

A number of Paul critics called those remarks a flip-flop from what he'd said during his filibuster: "[N]o American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court."

Paul's office objected that picking that one quote out of his hours of remarks during the filibuster overlooked his earlier articulation of the imminent threat standard. "Armed drones should not be used in normal crime situations," Paul said in a statement. "They only may only be considered in extraordinary, lethal situations where there is an ongoing, imminent threat. I described that scenario previously during my Senate filibuster."

And, in fact, Paul did make that point clear, saying in March that he made an exception in his objection to using armed drones domestically for "someone with a bazooka, a grenade launcher on their shoulder. Anyone committing lethal force can be repelled with lethal force. No one argues that point.... No one is questioning whether the U.S. can repel an attack. No one is questioning whether your local police can repel an attack."

But President Obama just did: If no armed drones are to be used over U.S. soil, they certainly are not going to be used by a local police force against someone with a bazooka who could, presumably, be taken out by a sniper, a S.W.A.T. team, or some other domestic law enforcement approach using conventional weapons.

Today's presidential statement should but likely will not lay to rest the lingering controversy started by Paul in response to a hypothetical scenario laid out by Attorney General Eric Holder in a March response to a February query from Paul.

"The U.S. government has not carried out drone strikes in the United States and has no intention of doing so," Holder wrote to Paul on March 4. "As a policy matter, moreover, we reject the use of military force where well-established law-enforcement authorities in this country provide the best means for incapacitating a terrorist threat."

If there were some "extraordinary circumstance" on the level of the attack on Pearl Harbor or Sept. 11, Holder wrote, drones might be considered as part of a broader authorization for the use of military force domestically. But, he said, such a scenario was "entirely hypothetical." Holder further clarified the point in second letter to Paul on March 7, following Paul's filibuster. "It has come to my attention that you have now asked an additional question: 'Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?' " Holder wrote. "The answer to that question is no."

Before Paul's filibuster, Holder rejected the use of drones, a form of military force, when domestic law enforcement could do the job. Obama made that standard even clearer today.

* * *

Obama's full remarks, as prepared for delivery, from the drones section of his speech:

[D]espite our strong preference for the detention and prosecution of terrorists, sometimes this approach is foreclosed. Al Qaeda and its affiliates try to gain a foothold in some of the most distant and unforgiving places on Earth. They take refuge in remote tribal regions. They hide in caves and walled compounds. They train in empty deserts and rugged mountains.

In some of these places - such as parts of Somalia and Yemen - the state has only the most tenuous reach into the territory. In other cases, the state lacks the capacity or will to take action. It is also not possible for America to simply deploy a team of Special Forces to capture every terrorist. And even when such an approach may be possible, there are places where it would pose profound risks to our troops and local civilians - where a terrorist compound cannot be breached without triggering a firefight with surrounding tribal communities that pose no threat to us, or when putting U.S. boots on the ground may trigger a major international crisis.

To put it another way, our operation in Pakistan against Osama bin Laden cannot be the norm. The risks in that case were immense; the likelihood of capture, although our preference, was remote given the certainty of resistance; the fact that we did not find ourselves confronted with civilian casualties, or embroiled in an extended firefight, was a testament to the meticulous planning and professionalism of our Special Forces - but also depended on some luck. And even then, the cost to our relationship with Pakistan - and the backlash among the Pakistani public over encroachment on their territory - was so severe that we are just now beginning to rebuild this important partnership.

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Garance Franke-Ruta is a former senior editor covering national politics at The Atlantic.

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