The Congressional Dilemma - Drones vs the Constitution

Robert Gates, former Secretary of Defense under Presidents George W. Bush and Barack Obama, and former head of the CIA, has announced his support for a congressional proposal to create a special court to review President Obama's use of unmanned drone strikes against Americans linked to al-Qaida. Gates said Obama's use of the unmanned drones follows tight rules. But he shares lawmakers' concerns about the uncontrolled use of unmanned aircraft to target al-Qaida operatives, including US citizens. Gates warned on a Sunday political TV program that while Obama may be following strict rules, it is not possible to say what a future president might do. The use of drones made page one news last week as lawmakers considered how much freedom an American president should have in going after the nation's enemies, including its own citizens. The controversy became unavoidable when the President nominated John Brennan, Obama's former counter-terrorism chief who oversaw drone strikes, to head the CIA. During Senate hearings, Brennan defended drone strikes only as a "last resort," but he said he had no qualms about targeting and killing Anwar al-Awlaki and Samir Khan, both US citzens, in Yemen in September 2011. Another drone strike two weeks later killed al-Awlaki's 16-year-old son, a Denver native. Intelligence concluded that the elder al-Awlaki was the senior operational leader of al-Qaida in the Arabian Peninsula, planning attacks in the US, including the failed Christmas Day bombing of an airplane as it landed in Detroit in 2009. There was quick and often partisan reaction to Brennan's testimony. Illinois Senator Dick Durbin, ranking Democrat on the Senate Intelligence Commitee, said on another Sunday TV program, "We're not sending manned bombers. We're dealing with the enemy where we find them to keep America safe. We have to strike a new constitutional balance with the challenges we face today." Kentucky's Republican Senator Rand Paul said, "I find it unseemly that a politician gets to decide the death of an American citizen,...They should answer about the 16-year-old boy, al-Awlaki's son who was killed not as collateral damage, but in a separate strike." There is widespread congressional uneasiness about the unfettered program. "It just makes me uncomfortable that the President - or whoever it is - acts as the prosecutor, the judge, the jury and the executioner, all rolled into one," said independent Maine Senator Angus King. Lawmakers are considering overseeing such drone attacks by means of a secret court of federal judges that now reviews requests for government surveillance in espionage and terrorism cases. The court of 11 federal judges reviews wiretap applications that allow the FBI and other agencies to gather evidence to build cases. Unlike normal US trial procedure, suspects have no lawyers present, and the proceedings are secret. House Intelligence Committee Chairman Mike Rogers, a Michigan Republican, says his committee members review all CIA and Pentagon drone strikes on a monthly basis. Rogers feels that there is already enough oversight. On yet another Sunday TV political program, Republican Senator John McCain, influential in all matters concerning the military, took another view of the drone question, saying an overview court for the drone program would unconstitutionally impinge on the President's powers. McCain contends that the solution is to move drone oversight out of the CIA and into the Department of Defense, "where you have adequate oversight," he said. "Since when is the intelligence agency supposed to be an air force of drones that goes around killing people? I believe that it's a job for the Department of Defense." So, dear readers, the political battle lines are drawn, as they so often are in Washington. What makes the drone question different is its proximity to the constitutional question of the rights of an accused person to procedural fair play - the right to counsel, to a fair trial, to present evidence on his own behalf, to confront hostile witnesses, to a jury decision. When a President, using the vague commander-in-chief in time of war prerogatives and claiming national security as his basis for acting secretly, orders the drone killing of US citizens, he has effectively ignored the Constitution's protection for accused individuals. Their constitutional rights have been sacrificed for the President's uncorroborated declaration that national security requires the killing. This is the congressional dilemma. They are duty bound to follow and protect the Constitution - to serve as a check and balance against a President's taking on more power than granted by the Constitution. The drone policy being articulated and followed by President Obama places Congress squarely in front of its constitutional duties. This is why Congress is turning to the courts, which are the third equal constitutional check-and-balance. Congress is essentially saying,'this is too much for us; you take on the burden, judges.' Now, consider John McCain's position -- he leaves the presidential wartime power intact, he moves the drone program to the Defense Department that, unlike the CIA, has clearly established reporting links to Congress and would merely add drone reporting as agreed with the congressional oversight committees, and he saves court decision-making for real fact sets, not just presidential assertions. John McCain may have the best drone program solution.