March 8, 2013
On first glance, it is a simple question to be laughed at or outright dismissed because someone with a lack of knowledge on the Global War on Terrorism would think it could never happen. That is how a number of people who consider themselves to be "serious" individuals reacted to the question of whether the president could authorize a weaponized drone to kill an American not engaged in combat on American soil, which Senator Rand Paul forced Attorney General Eric Holder to answer without equivocation. However, when considering all the powers both President George W. Bush and now President Barack Obama have claimed and embraced in the Global War on Terrorism to target, isolate and sometimes even neutralize individuals without probable cause and only on mere suspicion, it seems much less looney to ask with a straight face.
First, if the answer was so obvious, why was Holder so reluctant to make a constitutional or legal judgment that without a doubt eliminated any reasonable thought that the president might have the authority to target and kill a US citizen on US soil, who did not pose an immediate threat? He was asked this question during a Senate Judiciary Committee hearing on March 6, but all he could say until he became flustered with Senator Ted Cruz was that using a drone to kill would be "inappropriate."
A "serious" legal mind at Lawfare, Benjamin Wittes, reacted scornfully:
There are about a hundred interesting and difficult questions to pose to the administration about targeted killings and drones. Sen. Paul started with one of the least interesting: Can the government kill an American with a drone domestically? Itís about as interesting a question as, say, asking whether the Air Force can conduct air strikes against targets in Chicago. In fact, itís the exact same question. And the answer to it is exactly the same: the Air Force would never do that except under conditions so extreme that they implicate all sorts of inherent defense authorities that, of course, exist.
Indeed, there may be other more "interesting" and "difficult" questions. Paul asked them in three letters and did not receive an answer. Finally, he received an answer to whether drones could be used to kill someone on US soil. It did not rule out whether they could be used. And the question was not of ability as Wittes phrased it. The question was one that went to whether it would be legally defensible in the Obama administrationís opinion to ever assassinate an individual on US soil.
Wittesí colleague, Steve Vladeck, wrote Paul may have painted a "'misleadingly very unattractive pictureí of the US governmentís actual policy with regard to drone strikes," but that reaction is because he trusts the Obama administration and "canít imagine a scenario which it would resort to the use of force (or believe that it would be lawful for it to do so) in circumstances remotely resembling those described by Senator Paul." He added, this is "what we think. Critically, itís not because we actually know how the government conceives of its authority, or the limits thereof, in spite (if not because) of the 'white paper.í"
Remarkably, critics have undermined their contention that Paulís filibuster deserves to be ridiculed or contemptuously regarded by proceeding to list off a litany of issues created by Obamaís drone policy that need to be addressed.
MSNBC host Chris Matthews had Senator Dianne Feinstein (D-CA) on to address whether Paulís concerns were pure "hype." She answered, "I think itís built up. I think itís hyped up. I think itís cleared up. It was cleared up yesterday when Senator Cruz asked the question in the Judiciary Committee." But, she then said the following:
FEINSTEIN: I think the drone is a new technology. In some respects, itís the perfect assassination weapon. It can see from 17,000, 20,000 feet up in the air. It is very precise. It can knock out a room in a building, if itís armed. Itís a very dangerous weapon.
Right now, we have a problem. There are all these nations that want to buy these armed drones. I am strongly opposed to that. We have no regulation of drones in the United States in their commercial use. You can see drones some day hovering over the homes of Hollywood luminaries, violating privacy.
FEINSTEIN: This question has to be addressed. And we need rules of operation on the border, by police, by commercial use, and also by military and intelligence use.
So this is now a work in progress. We are taking a look at it on the Intelligence Committee, trying to draft some legislation. The administration is looking at a rules playbook as to how these wont be used and how they will be used. [emphasis added]
Feinstein referred to drones as the "perfect assassination weapon." This is not how drones have been described by any Obama administration official. They are very careful with how they use sanitized language so it does not seem obvious they have adopted a policy that amounts to state-sanctioned murder. And, issues around rules of operation were mentioned; for example, "There are going to be all kinds of private uses for drones. There have to be some rules for where they are flown so they do not get in the way of airplanes." So, this was not merely pandering to the "black helicopter crowd" that "fear the government," as Matthews suggested.
The same goes for the Washington Post editorial published today. The Postís editorial board wrote, "After Sen. Rand Paul (R-Ky.) held the Senate hostage Wednesday in order to warn that American citizens could be targeted by drone strikes on U.S. soil, he was rightly taken to task for gross and irresponsible mischaracterizations of the Obama administrationís policy." The editors actually did what they accused Paul of doingóengaged in mischaracterizationóbecause he did not stand up there and say Obama could target Americans on US soil with armed drones. He said he needed an answer from the administration because the answer he had been given and read suggested they might think they had some authority for killing.
After deriding Paul, the Postís editorial cogently outlined how the Obama administrationís drone policy and programs should not be shrouded in so much secrecy. It called for having the military control all drone operations instead of the CIA. It suggested the administration seek some kind of "congressional authorization" for drone strikes. (Though, disappointingly, the Post's editorial board called for these measures to be taken then added this could make it possible to expand the presidentís ongoing dirty wars with drones in Syria and Mali.)
Paul said on the floor, "We have to ask about limitations on force, because essentially what we have now is a war without the geographic boundaries."
Now, upon closer look, it is apparent that many of the points Paul made where he was critical about the drone policy abroad and the killing of foreign persons away from any hot battlefield were all stated with a focus on what this means for US citizens here at home. When is the war going to come home? If they think they can do this abroad, do they think they can do this to us here at home? It is American exceptionalism and, if he thinks it would be wrong for US citizens to be targeted with the criteria Obama has adopted for drone strikes abroad, he should be critical of the presidentís dirty wars in Pakistan, Somalia and Yemen. (Note: Paul did ask Brennan in a letter, "Is the U.S. drone strike strategy exclusively focused on targeting al-Qaida or is it also conducting counterinsurgency operations against militants seeking to further undermine their governments such as in Yemen?"
For its flaws and Paulís flaws, it does not deserve the sort of reaction that came from people like MSNBC host Lawrence OíDonnell:
Paranoia runs deep on the Senate floor when Rand Paul is on his feet. His wild imaginings of you being killed in your bed and of you being hit by drone strike while you`re in a cafe went on and on for hours on end yesterday. It was the first time the black helicopter crowd out there had one of their own speaking into a Senate microphone.
Iíve heard many important and thoughtful concerns and questions raised about the American military`s use of drones. But Iíve never heard any of them raised by Rand Paul. Rand Paul is not a flawed messenger on this subject. He is a ridiculous, sick, paranoid messenger on this subject.
OíDonnell, like the "serious" legal mind of Benjamin Wittes, called it a "stunt" over and over again on March 7. His guests pushed back (just like the guest he had pushed back on his show the night before). Both E.J. Dionne of The Washington Post and Ryan Grim of Huffington Post in a backhanded sort of way complimented Paul for bringing attention to the issue of drones.
Does Holderís "no" answer actually indicate the president does not have the authority? Former Chief Guantanamo prosecutor Morris Davis said on "The Young Turks" on Current:
DAVIS: I donít think we can afford to sit back and just say the Attorney General has answered the question for the administration. If you recall back during Libya, with the War Powers Act, the Administration shopped around and the Justice Department didnít give them the answer they wanted. The Defense Department didnít give them the answer they wanted. So, they went to the State Department to get Harold Koh to let them circumvent the War Powers Act. So, just because the Attorney General has said "no" to drone strikes thatís not binding on the president. I would feel much better hearing from the commander-in-chief himself.
The answer is it does not rule out whether he has the legal authority. Until citizens can read the law or some document with legal advice instructing the president on the boundaries of his powers, the American people will not be able to say without a doubt "no" the president does not have this power.
Moreover, it addresses whether a drone could be used, not whether law enforcement could carry out a kill mission or night raid-style operation on an American citizen. Marcy Wheeler did a post on February 26 about what a targeted killing in the US might look like. Supposing it was carried out by the FBI, it may be impossible to figure out a US citizen had his or her due process rights violated. A wrongful death suit could be brought, and the FBI could make all sorts of claims to conceal evidence and prevent the secrets around such an operation from becoming part of litigation.