Gerald Walpin in The Daily News: “The case for using drones at home. Safety matters most”

March 14, 2013 | By | Reply More

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The case for using drones at home: Safety matters most

By Gerald Walpin, March 14, 2013

There were good reasons to object to John Brennan’s confirmation as CIA chief. But the administration’s refusal to handcuff America’s ability to defend itself by promising never, under any circumstances, to use a drone against American citizens in the U.S. is not one.

Sen. Rand Paul (R-Ky.) filibustered Brennan’s nomination because, he believed, “no American should be killed by a drone, on American soil, without first being charged with a crime, without first being found guilty by a court.”

While Paul claimed to rely on our Constitution, in fact his position is contrary to what our Constitution provides and what our Founders intended. The Constitution declares its purpose is to “insure domestic tranquility (and) provide for the common defence” — both of which impose on our government the duty to provide security for this country.
Rendering the President unable to use whatever measures are then needed, including a drone, to prevent terrorist murders of our people, by an enemy who is a U.S. citizen, would handcuff our government’s ability to perform that function.

Alexander Hamilton, one author of the Constitution, and a primary advocate for its adoption, wrote in Federalist Papers No. 23 concerning “the care of the common defence” as requiring “powers . . . without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent of the means which may be necessary to satisfy them . . . for this reason no constitutional shackles can wisely be imposed on the power.”

This point was so crucial to Hamilton that he repeated it: “There can be no limitation of that authority, which is to provide for the defence and protection of the community.”
Hamilton foresaw and rebutted those, like Paul, who seek to restrain the President’s ability to respond with force effectively against our enemies. He criticized them as “ow[ing] their origin to a zeal for liberty more ardent than enlightened” (Federalist No. 26).

And he made clear that he was not talking just about foreign enemies, but also “seditions and insurrections,” as to which “governing at all times by the simple force of law . . . has no place but in the reveries of those political doctors, whose sagacity disdains the admonitions of experimental instruction”; rather, as to “such emergencies . . . under the national government, there could be no remedy but force” (Federalist No. 28).

Abraham Lincoln understood this necessity during the Civil War. To him, all Confederate soldiers were American citizens engaged in an insurrection. Realistically, some Southern Americans who were not actively participating in the insurrection were caught up in our use of force. But that did not deny Lincoln his power — and his responsibility — to take all actions needed to save our country.

Drones, obviously, did not exist then. But no one should doubt that, if that weapon were then available, Lincoln would have ordered its use to kill Gen. Robert E. Lee and his commanders, found eating dinner in a restaurant in one of the strategy conferences they held.

The Bush administration is said to have made a similar decision on 9/11 when it authorized the military to shoot down one of the planes taken over by terrorists, heading for the White House or the Capitol. Does anyone think President George W. Bush had to let the plane crash into the White House because he needed time to seek court approval?

Of course, a President must be extremely hesitant in employing any weapon — a bullet or a drone — against an American citizen in the U.S. Assume, however, a situation in which an American citizen who has joined Al Qaeda leads a group of terrorists across the border from Canada or Mexico into the U.S., and there is insufficient time or ability to prevent their pressing the button, except by the use of a drone.

Do you really want the President to seek to substitute “due process” for saving thousands of American lives?

Alexander Hamilton said “no.” I agree.


Walpin is a New York lawyer and author of the forthcoming book The Supreme Court Vs. The Constitution.

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Category: Gerald Walpin, The Supreme Court vs. The Constitution

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