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Eugene K. Chow

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Droning On: The Need to Establish a New Norm

Posted: 02/15/2013 5:36 pm

With today's wireless communications technology, employees can work remotely, governments and businesses can monitor our communications, transactions, and movements remotely, and using drones, the military can kill remotely - yet our constitutional rights have remained immobile, tethered to the physical borders of the United States.

Last week's Senate confirmation hearing of CIA Director nominee John Brennan and the subsequent debate regarding the CIA's drone program has made it clear that while the simultaneous rise of web-based technologies and the perpetual war on terror have helped break down physical borders and engendered a more fluid conception of war, laws have remained tied to geographic boundaries.

The leaked Department of Justice memo outlines the White House's case that the president or "an informed, high-level official" has the ability to kill a U.S. citizen if they are deemed a serious threat, even if they are "outside the area of active hostilities."

While it might be convenient to believe that the war on violent extremism is solely fought in distant deserts, in reality, the battlefield is potentially infinite. That is to say, the battlefield has become portable, and as the memo suggests, an individual's location now constitutes the theater of war.

The military has recognized this change by operating drones wherever insurgents go, yet laws and congressional oversight have not adapted to this new reality. In the same way that companies recognize that employees can work without physically being at the office, our government must recognize that its citizens continue to exist as citizens outside of the physical borders of the United States. Constitutional rights should not be constrained to geography.

If an American living in Manhattan joined al Qaeda, authorities would not be authorized to execute him or her without a trial. Even after Timothy McVeigh detonated a truck bomb in Oklahoma City, killing 168 people and injuring over 800, he was arrested and tried before he was executed. So why then are Americans, away from U.S. soil, subject to execution without the slightest Constitutional rights?

Members of al Qaeda who take up arms against the United States are not immune from an attack, however just as Americans who join al Qaeda are afforded some civil liberties even after they are declared enemy combatants (Hamdi v. Rumsfeld), Americans on the CIA hit list should be given limited legal protection.

Contrary to what some have argued that the president requires full and unadjudicated control of the CIA's drone program for the swift execution of military operations to safeguard the nation, the proposed drone court or some form of Congressional oversight would not necessarily slow down the government's ability to wage war.

Before that fateful button is pressed and Hellfire missiles go streaking toward an enemy combatant, thousands of man-hours are poured into gathering intelligence, assessing threats, and monitoring their movements. In all that time building up to that final moment, why can we not spare a few extra minutes for a Congressional committee, a judge, or a panel to determine if an American ought to be killed or not? Let us remember that the measure of a democratic society is not how it treats its best, but its worst.

In the war against violent extremism, our government has already established a precedent for additional oversight. Following the Hamdi v. Rumsfeld decision, the Pentagon created Combatant Status Review Tribunals to determine if captured enemies on the battlefield had been properly designated as "enemy combatants." So it is not a question of whether the government can establish additional layers of oversight to ensure transparency, accountability, and the protection of Constitutional rights, but rather do we have the will.

Now that a perpetual war, waged on an omnipresent battlefield, and drones capable of automatically monitoring every single moving object within 65 square miles and firing death-dealing missiles with a click of the button have become commonplace - it is high time we put into place laws and parameters that clearly define this new norm.

 
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