Drones Are Tyranny, Except When They’re Not
You’ve probably never heard of Maj. Heather “Lucky” Penney of the Washington, DC, Air National Guard. I hadn’t heard of her until this morning, when I did a quick Google search prompted by the frenzy of drone-related tweets coming on the heals of Sen. Rand Paul’s filibuster-y madness on the Senate floor last night. More about that later.
On September 11, 2001, then-Lt. Heather Penney was a rookie fighter pilot, one of the very first female fighter pilots in the history of the U.S. military. That morning, Lt. Penney was given a chilling order: To bring down United Flight 93, believed to be headed toward Washington, D.C., with an unarmed F-16 fighter jet:
Because the surprise attacks were unfolding, in that innocent age, faster than they could arm war planes, Penney and her commanding officer went up to fly their jets straight into a Boeing 757.
“We wouldn’t be shooting it down. We’d be ramming the aircraft,” Penney recalls of her charge that day. “I would essentially be a kamikaze pilot.”
“There was no perceived threat at the time, especially one coming from the homeland like that,” says Col. George Degnon, vice commander of the 113th Wing at Andrews. “It was a little bit of a helpless feeling, but we did everything humanly possible to get the aircraft armed and in the air. It was amazing to see people react.”
A third plane hit the Pentagon, and almost at once came word that a fourth plane could be on the way, maybe more. The jets would be armed within an hour, but somebody had to fly now, weapons or no weapons.
I mention this story not because it involves amazing heroism, which it does, but because the fact that the Bush Administration sent military aircraft – both armed and unarmed – into the skies on September 11 surprised exactly no one. As events were unfolding, and before anyone knew exactly who was responsible for the attacks, the President and the military were prepared to use lethal force to stop planes from hitting additional targets, even if it meant killing innocent American passengers, and regardless of the nationality or citizenship of the hijackers.
If you paid any attention to the news coverage at the time, you knew this. And I suspect, like me, you didn’t object to it in the least. As much as I abhor nearly everything George W. Bush did as president, I can’t fault him or his military leaders for making that awful decision. What other choice did they have? If they’d had the opportunity to shoot down even one of those planes, they might have saved the lives of thousands of other innocent people. It’s an awful choice to have to make, but we expect presidents to make extraordinarily difficult choices in extraordinarily difficult circumstances.
So I was genuinely taken aback by the controversy that erupted after Attorney General Eric Holder sent a letter to Sen. Paul, in response to Sen. Paul’s inquiry about the Administration’s views on the legality of using drones against Americans on American soil, in which letter Holder, after stating “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,” added:
The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront. It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.
For example, the president could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.
(H/t Booman Tribune.)
In other words, Atty. Gen. Holder told Sen. Paul that the Obama Administration would do exactly what the Bush Administration attempted to do on September 11, 2001, in identical circumstances. Now I’m old and my memory is imperfect (although I did remember, quite clearly, that the Bush Administration scrambled fighter jets on 9/11), but try as I might to wrack my middle-aged brain, I recall exactly no controversy – as in none, zip, zero, nada – absolutely no controversy whatsoever following the Bush Administration’s attempt to use lethal military force that day.
So you can understand my confusion. This is not a case where the Bush Administration expanded the powers of the presidency and the Obama Administration followed suit; instead, this is a situation where Pres. Bush’s actions were met with no controversy at the time because they were not controversial. What Pres. Bush did on 9/11 – ordering fighter pilots to take to the air, to shoot down hijacked airliners if necessary – appeared to everyone at the time to be right in the presidential wheelhouse, legally and constitutionally. Awful, yes. Illegal? Of course not.
And yet the Obama Administration’s position is controversial … why, exactly? The reason seems to be that military technology has evolved. We have these drones now, and the Obama Administration hasn’t been shy about using them overseas, and so … what? Does the advancement of military technology mean the president has less authority to use military force in a 9/11-type situation that George Bush had? I don’t think so. The President’s legal authority to act in a situation like that isn’t the authority to use drones or the authority to use fighter jets; it’s the authority to use lethal military force. Advancements in military technology may make the use of that force easier, more accurate, and deadlier. Advancements in military technology may make the use of that force more complicated, as may be the case with remote-controlled devices like drones. But in any given situation, the President either has or doesn’t have the authority to use lethal force. The existence or nonexistence of drones doesn’t alter that fact.
On the other hand, nothing prevents Congress from adopting rules governing the use of lethal force in situations like 9/11, including, of course, rules for the use of drones or any other type of weaponry. Article I, Section 8 of the Constitution vests considerable control over the military and the country’s war-making powers in the legislative branch, rather than the executive, and that ought to encompass the power to regulate, in Holder’s words, the ability “to authorize the military to use such force if necessary to protect the homeland in the circumstances like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.”
Of course, American history teaches that if Congress were to attempt to regulate the use of force in emergency circumstances like 9/11, it would most likely do so in a way that would be highly deferential to the executive branch. That’s what Congress does – it errs on the side of giving presidents wide latitude, so it can blame the president when the whole thing goes south. See Iraq, War In.
Nonetheless, some regulation is probably better than none; so have at it, Congress. But please don’t pretend that all of the sudden this power that everyone knows presidents have, that everyone wants presidents to use in the right circumstances, is tyrannical in the hands of Barack Hussein Obama.
David von Ebers
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