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Are Drone Attacks Against Americans Legal?

Can the government use drones against American citizens? Legal Lad uncovers the scary truth.

By
Adam Freedman
March 22, 2013

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Are Drone Attacks Against Americans Legal?Today’s Topic: Drone Attacks Against Americans

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Attack of the Drones!

On Wednesday, March 6, 2013, Republican Senator Rand Paul took the unusual step of engaging in a real old-fashioned filibuster.   That is, he started talking during a Senate debate and then he just kept going. And going. Just like the Jimmy Stewart character in Mr. Smith Goes to Washington – he refused to yield the floor. For 13 hours! The filibuster was motivated by Senator Paul’s stated concern about whether the federal government could target U.S. citizens with “drones,” that is, small remote-controlled planes that can be used to drop bombs.   In today’s episode, I’ll discuss the controversy over the use of drones against American citizens.

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Military Drones Have Been Used Since 9/11

The Obama administration, like the Bush administration before it, has used “unmanned aerial vehicles,” otherwise known as “drones,” in the War Against Terror. According to a Washington Post report in the fall of 2012, almost 3,000 militants and civilians have been killed since the 9/11 attacks a decade ago, and the Obama administration has been ramping up the use of drones.

Attacks Against Americans Are Possible

The drone attacks have taken place overseas in places like Afghanistan and Yemen. But when President Obama nominated John Brennan as new director of the Central Intelligence Agency, Senator Rand asked Brennan to confirm that the administration would not order a lethal drone strike against a U.S. citizen on U.S. soil.   The answers were not entirely comforting: both Brennan and, later, Attorney General Eric Holder stated that the government has not conducted lethal drone strikes within the U.S. “and has no intention of doing so.”   But the administration did not rule out the possibility.

Are Americans Engaged in “Combat” Against the United States?

Mr. Holder subsequently clarified that the government did not assert the authority to kill Americans without trial if they are not engaged in combat against the government. But the critical issue then is: What does it mean to be engaged in “combat” against the United States?  In September 2011, the U.S. used armed drones to kill two of its citizens in Yemen: Anwar al-Awlaki and Samir Khan. This was reportedly the first time since the Civil War that the U.S. government had ordered the death of Americans without trial.  

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