Wednesday, March 6, 2013

Back to Drone-town

Yesterday, Senator Rand Paul released a letter he received from Attorney General Eric Holder on the subject of drone strikes against U.S. citizens. Paul has been pestering the White House's nominee to head the CIA--John Brennan--about this issue for a while now and is still threatening to block the nomination. The letter from Holder was in direct response to a question Paul asked in a February 20th letter to Brennan. It's worth quoting both in full.

This is what Paul sent to Brennan (my boldface):
Dear Mr. Brennan,

In consideration of your nomination to be Director of the Central Intelligence Agency (CIA), I have repeatedly requested that you provide answers to several questions clarifying your role in the approval of lethal force against terrorism suspects, particularly those who are U.S. citizens. Your past actions in this regard, as well as your view of the limitations to which you are subject, are of critical importance in assessing your qualifications to lead the CIA. If it is not clear that you will honor the limits placed upon the Executive Branch by the Constitution, then the Senate should not confirm you to lead the CIA.

During your confirmation process in the Senate Select Committee on Intelligence (SSCI), committee members have quite appropriately made requests similar to questions I raised in my previous letter to you-that you expound on your views on the limits of executive power in using lethal force against U.S. citizens, especially when operating on U.S. soil. In fact, the Chairman of the SSCI, Sen. Feinstein, specifically asked you in post-hearing questions for the record whether the Administration could carry out drone strikes inside the United States. In your response, you emphasized that the Administration “has not carried out” such strikes and “has no intention of doing so.” I do not find this response sufficient.

The question that I and many others have asked is not whether the Administration has or intends to carry out drone strikes inside the United States, but whether it believes it has the authority to do so. This is an important distinction that should not be ignored.

Just last week, President Obama also avoided this question when posed to him directly. Instead of addressing the question of whether the Administration could kill a U.S. citizen on American soil, he used a similar line that “there has never been a drone used on an American citizen on American soil.” The evasive replies to this valid question from the Administration have only confused the issue further without getting us any closer to an actual answer.

For that reason, I once again request you answer the following question: Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?

I believe the only acceptable answer to this is no.

Until you directly and clearly answer, I plan to use every procedural option at my disposal to delay your confirmation and bring added scrutiny to this issue and the Administration’s policies on the use of lethal force. The American people are rightfully concerned, and they deserve a frank and open discussion on these policies.
This is the response from Holder, on behalf of Brennan (my boldface):

Dear Senator Paul,

On February 20, 2013, you write to John Brennan requesting additional information concerning the administration's views about whether "the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial."

As members of this Administration have previously indicated, the US government has not carried out drone strikes in the United States and have no intention of doing so. As a policy matter, moreover, 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. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individual have been arrested and convicted of terrorism-related offenses in our federal courts.

The question you have posed is entirely hypothetical, unlikely to occur and 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 of a catastrophic attack like the ones suffered on Dec. 7, 1941 and Sept. 11, 2001.

Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.
I went through the drone stuff in a previous piece. What I said then still applies here:
Well in my opinion, this is all much ado about nothing. Warfare is not what it was in 1776, nor what it was in 1940, nor in 1970. Drones represent an effective tool for combat operations. Is there collateral damage? Sure, but there's collateral damage from any missile strike, from any bombardment. Should U.S. citizens--like the two above--be afforded special protections from being killed in a military operation, even though they are actively engaged in treason? No, of course they shouldn't.
Look carefully at Paul's "big question": can the President authorize lethal force against a U.S. citizen on U.S. soil, without trial? Paul and others would like us to believe this is some sort of line in the sand, when it comes to freedom and liberty, to the proper extent of government authority. It's not. Because the answer to the question is a resounding "yes," not a "no." The mistake being made here is a lack of specificity. Can the President arbitrarily order the execution of any citizen via drone strike or the like? No, of course not. But could a situation arise wherein the President authorizes the use of deadly force against U.S. citizens on U.S. soil? Hello, McFly? Anyone remember the Civil War?

If there was open war taking place on U.S. soil, if--for instance--there was an invasion or a rebellion, the President as commander in chief could and would send the military in as a response. If some of those levying war against the U.S. happen to be U.S. citizens, it wouldn't matter a whit. They would enjoy no special protections during the conflict, they would be fair targets for the military; they could be rightfully killed by gunfire, bombs, drones, or pretty much any other weapon.

Is such a situation likely to arise now? No. It's so unlikely as to make it pointless to discuss. And that's the real problem with Holder's response: he knows such a situation--wherein a drone strike against a U.S. citizen on U.S. soil could happen--is just not a realistic or likely one. But for some reason, he decided to talk about it. Stupid (and unsurprising; Holder sucks at his job, after all). He should have ended his response after the second paragraph, for political reasons alone. But he didn't; instead, he gave Paul some red meat to chew on.

But again, there's really nothing here. Paul is using Holder's "what-ifing" to showboat. He's misrepresenting the Administration's position here and misrepresenting the Constitution in general, in the same way people like Andrew Napolitano have done (see my previous piece). There is no claim being made by Obama--nor was there one made by Bush--that the President has the authority to randomly execute U.S. citizens on a whim. Exactly the opposite. Any such killings are wrapped up in the prosecution of a war; that's the only place where the issue is even worth discussing. And a war on U.S. soil is just not likely, not worth worrying about. If there was such a thing taking place, I know that the last thing I would be worried about are the constitutional rights of the people attacking the U.S.

All that said, there are issues of Federal authority here, with regard to due process and the killing of U.S. citizens. Ruby Ridge and Waco come to mind. But taking the government to task on it's overreaches and use of excessive force--things people like Senator Paul are wont to do--doesn't require us to exaggerate and misrepresent other situations.

Again, this drone stuff is much ado about nothing.

Cheers, all.


  1. Disagree. The office President has no Constitutional authority to kill US citizens. The office of President has no Constitutional authority to start a war. Sorry, Lincoln was wrong.

  2. Well, let's allow that Congress authorizes the war in general. The President then--as commander in chief--has the authority to prosecute the war, right?

    Seriously, from the standpoint of open-ended speculation--which is what Holder stupidly engaged in--the idea that the President can never, ever "authorize the military to use lethal force within the territory of the United States" is indefensible. It really is.

    Holder is not suggesting killing Americans "at the dinner table" at all. It's dishonest of Senator Paul to suggest that, no matter how well it plays.

    Fear-mongering is wrong, no matter who is doing it, imo.