Where Does the U.S. Draw the Line on Drone Strikes?

The recent back and forth between the Obama administration and a Republican senator has brought to the fore questions about where the U.S. government draws the line on targeted assassinations.

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Last week, Kentucky Senator Rand Paul staged a 13-hour filibuster to postpone the appointment of John Brennan as Barack Obama's new CIA chief. During his speech, Paul asked, "Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?"

Obama clearly wouldn't order a drone strike to kill American citizens; the administration has plenty of other tools to capture or kill wanted citizens on U.S. soil. But raising the question shows that plenty of people have their doubts.

In any case, U.S. Attorney General Eric Holder later gave a clear answer to Paul's question: "No." Holder's reply, however, leaves two questions unanswered: Does the president have the authority to use a weaponized drone to kill an American engaged in combat on American soil, and does the president have the authority to use a weaponized drone to kill a non-American not engaged in combat on American soil?

The debate comes as the Obama administration's use of drone strikes is on the rise again. Targeted assassinations from the air as part of the global war on terror have increased during Obama's presidency; Obama, for example, authorized the September 2011 liquidation of an American citizen, Anwar al-Awlaki, in Yemen.

But the most surprising statistic is the growing use of drones in the United States. The Los Angeles Times revealed last month that the Federal Aviation Authority issued 1,428 licenses for unmanned drone flights in the United States; some 327 of those licenses are still valid.

According to an FAA report, as of October 2012 some 81 entities sought permits to operate drones in U.S. skies, among them the army and air force but also local police forces, universities and even one Indian reservation.

Research by the group Public Intelligence shows that the Pentagon is operating drones from 64 bases across the United States, of which 12 are for large Reaper and Predator drones that can be armed. Another 22 bases are due to start operating across the country by 2017. The Department of Homeland Security, which operates 10 Predator drones, mainly along the borders with Canada and Mexico, is reportedly interested in acquiring another 14 drones in the coming years.

The trends help explain the growing interest in the legal status of using drones in the United States. In a letter to Paul earlier this month, Holder wrote that the United States "has no intention" of carrying out drone strikes within its borders.

"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," Holder added. "We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts."

But Holder said he could conceive of an exceptional case in which the president would be forced – within the boundaries of the U.S. Constitution, of course – to order the use of lethal force on U.S. soil. The hypothetical examples Holder cited were Pearl Harbor and 9/11.

"Were such an emergency to arise, I would examine the particular facts and circumstances before advising the president on the scope of his authority," the attorney general concluded.

In Israel, the issue of drone assassinations is rarely questioned. According to foreign reports, Israel often uses unmanned drones in assassinating Palestinians. At least there is a discussion about the issue in the United States. In Israel, as Haaretz's Amos Harel has noted, no Israeli Rand Paul has arisen to question the limits of using this weapon.