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Mar 08 2013

Update on the drone strikes issue

The talking filibuster by senator Rand Paul (R-Kentucky) and the sharp questioning of the Attorney General Eric Holder by senator Ted Cruz (R-Texas) produced some positive results. Afterwards, Holder issued a letter that said that the answer to the question “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” is no. The White House press secretary Jay Carney was slightly less categorical at a later press conference, saying “The president has not and would not use drone strikes against American citizens on American soil” but then quoted Holder’s letter implying that the president agreed with it.

As Conor Friedersdorf points out, Holder’s earlier letter to Paul was an attempt to not concede that “the executive branch is legally forbiddento do certain things …, despite the fact that an unchecked executive is much more dangerous than the possibility of a future president failing to do enough to fight back against an actual attack on our homeland” and that Holder’s wording was “non-responsive, evasive, and deliberately manipulative”.

We should not be too elated by this. The new wording is narrow, limiting the actions to ‘weaponized drones’ and to US citizens in the US. The issue of the US government feeling it has the right to kill people without any oversight in the never-ending and supposedly global ‘war on terror’ is a much broader problem. We can be sure that the government will, if it has to, find ways to achieve its goals by maneuvering around this wording or even ignoring its promises altogether.

But there is a very positive lesson to be drawn from this episode. What should be emphasized is that the administration felt forced to issue a disclaimer because of the attention that the Rand talking filibuster and Cruz’s questioning had generated. Suddenly there was a lot of discussion on the issue of what limits, if any, existed on presidential power that I am certain that the administration and other advocates of an executive branch that has unlimited warlike powers would have rather have avoided. Witness the scorn that John McCain and Lindsey Graham poured on their Republican colleagues for daring to raise this issue at all.

One would hope that the take-away lesson is that at least some politicians and the media must focus attention on important issues. Otherwise we will continue the creeping undermining of constitutional protections and the rule of law.

Andy Borowitz manages to get some humor out of the whole business.

3 comments

  1. 1
    Gregory in Seattle

    It is “No” right now, in Holder’s personal opinion.

    I have absolutely no doubt that if Obama or a successor felt the need, excuses would be found. Holder was giving an opinion, not a binding legal judgement. It applied only to a specific technology that is now outdated or wasn’t used. The president did not have the authority when the opinion was issued, but assumed it as a presidential power or as part of the president’s constitutional duty to protect the country.

  2. 2
    Marcus Ranum

    It is “No” right now, in Holder’s personal opinion.

    Like that matters. If the president doesn’t like the answer he gets from Holder he can ask Alberto Gonzales or John Yoo or Rush Limbaugh. Because, once you decide you’re ignoring the law and you’re in the land of opinions – everybody’s got one.

  3. 3
    dmcclean

    As I commented at length on yesterday’s thread on this topic, the answer to the question “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” is clearly “yes”, unless you adopt an extremely broad definition of what constitutes “combat”. I think the definition most people would think was meant by that question would be for it to mean actively fighting one or more persons.

    I grant you that the dictionary definitions are fairly broad and include things that I would generally characterize as metaphorical references to combat, for example Merriam-Webster has:

    1: a fight or contest between individuals or groups
    2: conflict, controversy
    3: active fighting in a war : action

    But remember that broadening your definition of combat has the effect of narrowing the constraint on presidential power conveyed by a negative answer to the quoted question, so it is a double-edged sword when wielded as a way to save that question.

    See the holding in Tennessee vs. Garner (471 US 1):

    Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

    This has been done by federal law enforcement officers acting under authority delegated from the president. Unless you think that the “weaponized drone” part is important and have a good argument for why that should be so, I think this conclusively settles the answer to the quoted question is yes. The only way it can be no is if you broaden the definition of combat to include unarmed flight or rewrite centuries of precedent.

    Remember that drones are coming indoors, and soon. They could well be powerful and precisely targeted weapons against hostage takers. Such hostage takings have been known to occur in buildings with a complicated interior layout that makes raids dangerous to law enforcement, for example the Peter B. Lewis Building.

    Suppose the FBI had been at the scene assisting the Cleveland police. Suppose they were attempting to locate the hostage taker using an indoor drone. Suppose further that they found him and observed that he was casually holding a gun at his side, aimed at the floor. Suppose that the drone had the capability to kill him, or to fire a weapon designed to be incapacitating that carried a significant risk of death. Do you have it that the FBI agent absolutely may not shoot, regardless of how long the standoff has been going on or what has been said, because his authority derives from the president’s and the hostage taker is a US citizen? Why? What is it about the use of a weaponized drone that makes that the case?

    The relevant issue is due process and thus imminence, not drones, citizenship, or soil. I wrote at length on that and what I think we should do about it in the previous thread, so I’ll refrain from restating it here.

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