Defining the legal precedent for drone strikes

>>> we conduct those strikes because they are necessary to mitigate ongoing actual threats, to stop plots, prevent future attacks and, again, save american lives. these strikes are legal. they are ethical and they are wise.

>> one of the things i want to make sure that everybody understands is that our primary concern is to keep the american people safe, but to do so in a way that's consistent with our laws and consistent with our values. we say that we only take these kinds of actions when there's an imminent threat , when capture is not feasible and when we are confident that we're doing so in a way that's consistent with federal and international law .

>> 24 past the hour. top administration officials yesterday insisting the white house policy on the u.s. drones, killing americans abroad, believe to be affiliated with al qaeda is consistent with the constitution. joining us now from washington professor of law --

>> oh, by the way, mika, do you know why they said it's consistent with the constitution?

>> why?

>> because it was.

>> well, why -- basically it was the constitutional equivalent that the bible says it, i believe it says it.

>> professor of law at george washington university steven saltzburg joins the conversation. why don't we ask him.

>> much more wiser. thanks so much for being with us. let me just ask you what did you make of the administration's justification of this drone policy targeting and killing american citizens?

>> well, it's an interesting memorandum. it tries to combine united states law , international law and the law of war , and i think it's persuasive in part, and it raises a host questions that will be debated for a long time. i mean, clearly the most controversial part of this memorandum is this. i mean, everybody i think agrees that if -- if somebody were loading an airplane with a bomb ready to drop it on a city in the united states , everybody would say stop that airplane, and it wouldn't really matter whether it was being piloted by an american or somebody from any other country. that would be an imminent threat , but this memorandum says that the united states reserves the right to kill an american who it identifies as a high level al qaeda operative or someone associated -- an associated force of al qaeda who poses an imminent threat but then defines imminent threat as being nothing that's imminent at all.

>> that is a curious part of the memorandum. i'm curious what parts do you believe -- you said there are parts that are persuasive. what parts do you think is the most persuasive here?

>> the law of self-defense using the airplane example. everyone agrees if the country is about to be attacked, that the country has a right to defend itself.

>> yeah.

>> and, unfortunately, if americans happen to be part of the attack force, it's treason, but they don't get protection above that and which the law of war would give anybody else. memorandum though goes beyond that kind of immediate sense of self-defense to try to deal with something we've never dealt with in history before was a non- state actor like al qaeda , affiliated groups, and the question of what do you do about them when they spread out throughout many parts of the world and they apparently still target the united states and united states citizens .

>> you know, there's a long history, jon meacham of presidents going well beyond the bounds what appears to be written in the constitution from john adams , to abraham lincoln , of course, suspending habeus korus to woodrow wilson and fdr and george w. bush and now president obama . we just do this, don't we?

>> presidents tend to do what they want to do and find post-facto reasoning for it. jefferson argued that the duty of the chief magistrate is a strict line of the law but that's not the highest duty, that the survival of the country is. i wanted to ask the professor, if i could, is the constitutional basis for the memo the commander in chief clause?

>> it is the -- it is the commander in chief clause, and tied in with, you know, well-developed concepts of international law and that is the right of nations to defend themselves against attack and to engage in self-defense before the attack occurs.

>> so, as we've been debating this, and i wonder, joe, what you're thinking because we've been through debates like this before on issues of torture and gitmo and other areas where you feel like the letters of the law are being stretched and perhaps even, you know, to the point of popping, but what's potentially persuasive here maybe the same type of mental gymnastics you have to do to justify in your mind to gitmo or torture.

>> right, except the difference here obviously, professor, is the fact that we're dealing with american citizens. as i've said before over the past few days, it's one thing if we are going out and seizing who we believe to be enemy combatants and throwing hem into gitmo and keeping them there for a long time, that's one standard, but it would seem that the standard would be raised considerably when you start talking about an american citizen , whether it's padilla or whether it's now these americans who are being killed in drone strikes.

>> well, i think you're right about that, and the memorandum is very careful. it basically limits itself to an analysis of what constitutional protections are provided to american citizens that might not be provided to others and then concludes that neither the fourth amendment, the right to be free from unreasonable searches and seizures or the fifth amendment, the right to have your life protected, neither of those provisions prevents the president and the executive branch from protecting the united states from an imminent threat . as i say, the real question here is what qualifies as an imminent threat that would warrant taking a life without any kind of proceeding or any kind of review by anybody else?

>> and professor, the biggest problem is, again, you talk about the law of self-defense, but then you talk about this imminent threat is defined down to something that's just not imminent, and then you couple that with the fact that we are killing the 16-year-old sons of suspects, and then you couple with that the president of the united states , as the "new york times" reported this past summer, actually going down a kill list and selecting people to target. my god, i -- i suspect you've been doing this for quite some time. i'm sure you could have never imagined the united states getting to this point even ten years ago.

>> i think that's true. one of the dangers i think in the debate that's going on right now is that it's all well and good to think about killing americans , but does it really matter whether it's an american or a british citizen , french or german if we're authorizing someone to kill them because we think they are part of a group that might attack us?

>> i mean, does it matter constitutionally?

>> great point.

>> it does -- we give americans more protection than we give non-citizens under certain parts of the constitution, but when we're dealing with lethal force , it seems to me that we ought to worry about everybody that we're targeting.

>> yes, we should.

>> everybody we're killing, whether american or not.

>> yes, we should, mark mckinnon .

>> jon was talking it's a post-facto rationale but this is pre-facto. imagine a circumstance that this would be deployed by an american president , it would be a circumstance that's hardly even imagined so i say give -- give them that -- that latitude.

>> well, they have it.

>> good. i'm glad they do.

>> but can there be -- a potential judicial challenge here? could there be a case brought?

>> there always could be a case brought. can it win? i don't think so. i think when it comes to this area courts will definitely defer to the executive branch .

>> all right. well, i believe the family of the 16-year-old boy who was killed actually are bringing a lawsuit. i don't know that it's a constitutional challenge. probably a civil suit .

>> professor stephen saltzburg, thanks so much for coming on the though.