America 20xy
March 20, 2010

On March 19th John Yoo was confronted by author and activist David Swanson (whose blog After Downing Streetis provided as one of the links on this page) with the question, “Is there any law on the books that would prevent a war time president from shooting a missile from a drone at a suspected enemy within the United States?”

Yoo responded, “I don’t think there’s any law…I think it’s a Constitutional issue….the government can’t shoot missiles at whoever it feels like anywhere.” After some heckling from the crowd he continued, “It depends on whether the United States is at war.  If there were an enemy who actually invaded our territory and was on our territory then obviously you would think you could shoot missiles at them.  Just as (unintelligible) during the Civil War there was fighting on the territory of the United States.  There was no law which said the Union soldiers couldn’t shoot Confederate soldiers or Confederate soldiers couldn’t shoot Union soldiers but if we go into a war time situation and the enemy’s on our territory the United States can use force. 

“For example…on the 9/11 attacks, on that day, could the United States have shot one of those airliners before they hit the targets?  Under your theory I take it that would be a criminal act, because we would be shooting a missile at a civilian airliner which was being used as a weapon against us on our own territory.  I think if you had that conclusion you make it incapable for the United States to defend itself against terrorists.”

No reasonable person doubts the president’s authority to defend the United States during an attack that is in progress, as in the case of the official story of 9/11.   Such a scenario would involve a direct confrontation and a clear threat.  However, in the case of drone bombings and their use in the wars that are currently being fought overseas, strikes from these bombers are mostly used to take out enemies (many of them only suspected enemies) before any attacks can be carried out by them. 

Often times innocent civilians are also killed in these strikes. 

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According to the Constitution only Congress has the power to declare war, and therefore the United States has not had a single war declared since World War 2.  What’s alarming about Yoo’s use of “war” as justification for the practice of drone bombings within the United States is how ambiguously the term has been used over the past decade as an open-ended military, law enforcement, and intelligence campaign against a loosely defined enemy– terrorism.  As numerous historic examples have shown, such as the MIAC report which classified Patriots and Ron Paul supporters as potential domestic terrorists, a number of United States citizens exercising their First Amendment rights can be defined as enemies in this latest metaphorical conflict.    While some may find it a stretch to believe that the United States government would openly fire a missile at protesters, even in the case of terrorists who are actually plotting an attack, the 6th Amendment guarantees the accused a trial by jury.  The Amendment doesn’t address only accused United States citizens but anyperson within the United States.  In most states, by custom, non-citizens are extended the same Bill of Rights protections that citizens have.  While law enforcement has the right to open fire on a suspect if that suspect attacks first, it doesn’t have the right to execute suspects if that person can be apprehended safely. 

Yoo’s explanation was brief and only addressed whether or not the drones could be used in the United States, not whether or not they could be used against a suspected enemy, as was David Swanson’s question.  Yoo cited the Civil War as justification for drone bombings on American soil but didn’t make the clear distinction between open military conflict and the suspected criminality of the target when open conflict is not occurring. 

Before elaborating, Yoo’s first statement on the issue was the most correct, “the government can’t shoot missiles at whoever it wants anywhere.”  However, overseas the government has been, escalating these attacks even further under the current administration

The question that should be asked of Yoo or of current Attorney General Eric Holder by cvil liberties activists in the future, (so there’s no confusion): does the government believe “the war on terror” justifies the authority to execute drone bombings against suspected enemies within the United States before they’ve committed the crime the same way it executes these attacks overseas?

After all, in the current “War on Terror” anyone could be a suspect, and as civilian casualties overseas show, anyone can be also be a victim.

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