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.