Rand Paul's (Mostly) Fake Victory

It is with great sadness that, upon further reflection and research, I report Rand Paul's epic filibuster didn't actually accomplish very much at all.

Let's re-cap the exchanges between Paul and the Administration:

Rand Paul asks on February 20th:

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?

Attorney General Eric Holder responds March 4th:

 "The U.S. government has not carried out drone strikes in the United States and has no intention of doing so.... 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 December 7, 1941, and September 11, 2001."

In other words, yes, the President does claim that power.

Unfortunately, Paul's question in the February 20th letter did not exclude imminent, immediate threats, which he and most others agree the President has the Constitutional authority to respond with force. So, Holder was able to answer that question instead of the real question, does the President have the power to kill an American citizen on American soil, who is not actively engaged in combat?

Following the filibuster holder finally responded: "no".

"Hooray!" declared Rand Paul, claiming victory as he first heard the answer during a TV interview. Not only did the filibuster draw much attention to this neglected issue, we actually got an answer, and it was a good one.

Right?

Not so fast. It didn't take long for some people to realize the White House response dropped the word "actively" and beyond that left so much wiggle room as to not really be an answer at all. It's all in the key phrase "engaged in combat", which as Willaim Grigg reminds us, can mean whatever the President wants:

"Combat" can consist of expressing support for Muslims mounting armed resistance against U.S. military aggression, which was the supposed crime committed by Anwar al-Awlaki, or sharing the surname and DNA of a known enemy of the state, which was the offense committed by Awlaki’s 16-year-old son, Abdel. Under the rules of engagement used by the Obama Regime in Pakistan, Yemen, and Afghanistan, any “military-age” male found within a targeted “kill zone” is likewise designated a “combatant,” albeit usually after the fact. 

Glenn Greenwald's echos the same concerns in a Tweet this morning:

 Until we know how the OLC memos define "engaged in combat", Holder's letter to Paul tells us nothing meaningful

Unfortunately, this didn't stop Rand Paul from claiming victory, even though it was fake.

None of this would be a problem were it not for what happened after 9/11, explains Jacob Hornberger:

The problem occurred on 9/11, when Americans permitted President Bush to get away with treating the 9/11 attacks as an act of war. But they weren’t, any more than the 1993 terrorist attack on the World Trade Center constituted an act of war … or Timothy McVeigh’s terrorist attack on the federal building in Oklahoma City … or the Unibomber’s acts of terrorism …  or any other act of terrorism. Again, terrorism is a federal criminal offense, which is why accused terrorists are indicted and prosecuted in federal district court. 

Once Bush was permitted to get away with labeling his “war on terrorism” a real war, like World War II, he decreed that he now possessed the extraordinary powers associated with a military commander-in-chief, which necessarily includes killing enemy soldiers. In the war on terrorism, he said, the terrorists are the enemy soldiers or “enemy combatants.” In war, it’s legal to kill the enemy. 

Bush’s position was fully endorsed by President Obama. It will also undoubtedly be fully endorsed by Hillary Clinton if she is elected president four years from now. 

Equally important, both Bush and Obama have always emphasized that in the war on terrorism, the entire world is the battlefield. That includes the United States. Therefore, it logically follows that whatever powers Bush and Obama claim, as a wartime commander in chief, to kill people overseas extends to the United States. Again, in the war on terrorism, as U.S. officials have never ceased to remind us, the entire world is the battlefield. At the risk of belaboring the obvious, the entire world includes the United States. 

Thus, there can be no doubt whatsoever that President Obama claims the authority to assassinate the enemy not only abroad but also right here in the United States. After all, ask yourself: why would he say that he lacks the authority to wage war here in the United States when the United States is part of the worldwide battlefield in the global war on terrorism? 

Eric Holder’s initial statements confirm that position. Saying that the president isn’t currently planning to assassinate Americans isn’t the same thing as saying that the president lacks the legal authority to assassinate Americans. Instead, it’s saying the exact opposite. It’s saying that while the president does, in fact, have the authority to assassinate Americans, he’s simply not choosing to exercise that authority at the present time. However, if there is another major terrorist attack on American soil or some other big crisis, then, as Holder makes clear, all bets are off and the president might well expand his assassinations to American terrorists operating within the United States. 

What about Holder’s supplemental letter read yesterday by White House Press Secretary Carney? A careful reading of it reveals that it’s simply a clever device to obfuscate Obama’s real position. It’s saying that the president lacks the authority to use a drone to assassinate an innocent American—i.e., an American “not engaged in combat on American soil.” 

But neither Bush nor Obama have ever claimed the authority to assassinate innocent Americans. The authority they have always claimed has been to assassinate guilty Americans (and guilty foreigners)—that is, those people who are guilty of being terrorists.
Well, guess who decides whether a person is a terrorist. You got it! The president makes that determination. And once he decides that a person is a terrorist in his global “war on terrorism,” that’s the end of the discussion. The assassination is carried out by his loyal military and intelligence forces, and that’s the end of the matter. Under our post-9/11 system of government, neither the president nor the military nor the CIA is required to explain, justify, or even acknowledge the assassination.

If we are going to strike at the root of this problem, we will have to deal with this issue. War is the health of the state. The "war on terrorism", which is war on a tactic, is necessarily endless and claims the whole earth as battlefield. The extraordinary powers of a state reserved for a time of war have thus become permanent and can be used anywhere, thanks to the "war on terror". What more could a state pursuing its own self-interest ask for?

In this context, Obama's alarming claims of power make sense. The legal case for them is airtight, as neocon Charles Krauthammer explains. The only place Krauthammer is wrong is in mixing up which planet we and him live on. The trouble started with our erroneous response to 9/11. Terrorism is a crime, not a war.