Eric Holder answers Rand Paul (sort of)

Senator Rand Paul of Kentucky conducted a nearly 13-hour filibuster, asking whether President Obama claims the authority to kill Americans on American soil.  Attorney-General Eric Holder sent him the above letter.

The letter is Obama-like in its deftness, and in the way it makes Paul’s question seem ridiculous.  Barack Obama, as a politician, has a knack of allowing his opponents enough rope to hang themselves rhetorically, and then jerking the noose tight.  Of course it was not a ridiculous question.   What was ridiculous is that it took a nearly 13-hour filibuster to get this much of an answer.

What Holder does not say is what powers President Obama does claim, and the legal and Constitutional basis for that claim.  Does he have the right to kill Americans not engaged in combat on foreign soil?  Does he have the right to kill foreigners not engaged in combat?  Does “combat” mean actual fighting, or is there a more subtle definition of “combat”?

Kevin Drum of Mother Jones had this to say.

Points for drollery, I suppose. You have to appreciate the opening line: “It has come to my attention…..”

But this is still a weird reply.  Or maybe just deliberately opaque, like the previous replies.  If the president can’t use a drone to kill an American not engaged in combat, then he can’t use any other weapons to do this either.  Right?  There’s nothing special in the law about drones, after all.  So why not say so?

In addition, of course, the definition of “engaged in combat” is obviously key here.  Without much more detail on that, this probably doesn’t really tell us anything new.

But maybe I’m over-analyzing this, or being too harsh.  Rand Paul says he’s “quite happy” with this letter, so perhaps “combat” is precisely defined elsewhere.  My cynicism level is fairly high based on the administration’s game playing over the meaning of “imminent” in their white paper about drone strikes overseas, but maybe it’s now a little too high.

via Kevin Drum | Mother Jones.

Click on Why It Matters Than Rand Paul Got His Answer for comment by Conor Friedersdorf [Added 3/8/13]

Presidential death warrants and U.S. citizens

The White House has so far refused to give a straight answer to the question of whether the President claims to have authority to kill Americans on American soil based on his sole determination.

The police and the military have not only a right but a duty to use lethal force to protect human life.  Police have the right to use lethal force to take someone into custody who is charged with committing a crime or of whom there is probable cause to believe committed a crime.  If Americans wage war against their government, as in the Civil War, the government has the right to use lethal force to defeat them.

But in all these examples, the use of lethal force is limited to the specific situation.  The question is whether the President has an open-ended right to issue a death warrant against someone not engaging in an act of terrorism, not charged with a crime, not resisting arrest, not bearing arms against U.S. forces, but whom the President has determined is a threat to national security.

As it happens, I don’t think the President should have unlimited authority to order the killing of foreigners or people living in foreign countries, either.  But Obama administration’s response to the question about Americans on American soil shows how foolish it is to imagine that it is possible to grant a ruler absolute power and think it always will be used against somebody else.

So far as I can tell, the Obama administration has never acknowledged any legal restriction on the President’s power whatsoever.   I think this is a greater long-range threat to American freedom than anything our foreign enemies are doing.  You can be sure that whatever power is claimed by President Obama will be claimed by his successors, on whichever party.

I think Senator Rand Paul of Kentucky deserves great credit for pressing this question.   It is an example of how some Republicans libertarians, conservatives and even Tea Partiers are more principled defenders of liberty than many of us liberals.

[Update 3/7/13]  Attorney General Eric Holder sent Rand Paul a letter saying that the President does not have authority to use weaponized drones against American citizens not engaged in combat on American soil.  Click on Eric Holder answers Ron Paul (sort of) for my follow-up post.