March 11, 2013
As we noted Friday, Attorney General Holder’s statement that the president will not assassinate non-combatant Americans on U.S. soil with a drone left a huge loophole, and raised more questions than it answered.
Later that day, top constitutional and military law expert Jonathan Turley agreed:
We previously discussed how Attorney General Eric Holder wrote a letter confirming that the President would have authority to kill citizens on U.S. soil without a charge or conviction. His answer triggered a principled filibuster by Sen. Rand Paul and another embarrassment to Democratic Senators who, again, chose personality over principle in staying silent. Now, Holder has issued a new statement. No, President Obama still claims the right to kill U.S. citizens on his sole authority. However, Holder now says that, if the citizen is “not engaged in combat on American soil,” the President cannot vaporize him.The answer leaves the constitutional claim of Obama even more confused and conflicted. Does this mean we have a third category now under the policy: citizen, citizen terrorist, and citizen non-combatant terrorist?
In his prior letter, Holder answered a question about whether the President was claiming the right to kill citizens on U.S. soil. This follows the release of a memo showing that Holder’s description of the policy at Northwestern University Law School was narrower than the actual policy described within the Administration. A memo leaked to the press shows that the Administration has adopted a virtual limitless definition of imminence: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
Last week, Holder said “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.”
It is not clear what Holder means by “engaged in combat” since the Administration memo shows that the Administration is using an absurdly broad definition of “imminent” threat under the kill list policy. Since the Administration has continued to assert that terrorists are engaged in a war against the U.S., the terse reply of Holder seems designed to preserve later flexibility.
Moreover, there is nothing in the constitutional claim of the Administration that reflects such a limitation. Deciding on where to kill a citizen would be an discretionary policy under the sweeping presidential authority described by the Administration. As noted in earlier columns (here and here and here), it is astonishing how citizens, including so many liberals and civil libertarians, Obama is saying that his appointment of a non-binding committee satisfied due process and relieves any need for judicial review. Moreover, if the President has the inherent authority to kill a citizen in Canada, it is not clear why such inherent authority would not exist a few hundred yards away in Detroit. The Administration has said that it can use the unilateral power when it considers a capture to pose undue risk to its personnel.
What is particularly striking is that we have a president who is asserting the right to kill any citizen but the Administration has classified memos on that authority and the Attorney General will only give a Senator a terse two line conclusory statement on scope. The Administration appears to believe that there is little need to explain the details on killing citizens, such as how it defines “combat.” Obviously, if there is a war occurring in the United States, a president has the right to put down insurrection or attacks on the federal government. These strikes concern targeting terrorists. One can easily foresee this or a future president insisting that an alleged terrorism conspiracy is a form of combat.
It would seem an obvious thing to explain how they define combat and whether an alleged terrorist would fall into it. Does this mean that there will be a category of non-combatant terrorists for domestic strikes? How is that defined? It seems like a hole big enough to fly a drone through.Since police can already use lethal force to stop an attack in progress, the answer leaves more questions than it answers in my view. For a citizen it would mean that he or she can be killed abroad on the basis of the Administration’s wildly broad definition of “imminent” but domestically would fall under a different “combat” definition. Where is the line between an “imminent” threat and “combat” drawn? Does Holder mean there is a different meaning to imminence when someone steps over the border? We already have the definition of “imminent” and the Administration’s new definition of “imminent.” Is this yet a third option?
Today, former constitutional lawyer Glenn Greenwald weighs in:
As Law Professor Ryan Goodman wrote yesterday in the New York Times, “the Obama administration, like the Bush administration before it, has acted with an overly broad definition of what it means to be engaged in combat.” That phrase – “engaged in combat” – does not only include people who are engaged in violence at the time you detain or kill them. It includes a huge array of people who we would not normally think of, using common language, as being “engaged in combat”.
Indeed, the whole point of the Paul filibuster was to ask whether the Obama administration believes that it has the power to target a US citizen for assassination on US soil the way it did to Anwar Awlaki in Yemen. The Awlaki assassination was justified on the ground that Awlaki was a “combatant”, that he was “engaged in combat”, even though he was killed not while making bombs or shooting at anyone but after he had left a cafe where he had breakfast. If the Obama administration believes that Awlaki was “engaged in combat” at the time he was killed – and it clearly does – then Holder’s letter is meaningless at best, and menacing at worst, because that standard is so broad as to vest the president with exactly the power his supporters now insist he disclaimed.
The phrase “engaged in combat” has come to mean little more than: anyone the President accuses, in secrecy and with no due process, of supporting a Terrorist group. Indeed, radically broad definitions of “enemy combatant” have been at the heart of every War on Terror policy, from Guantanamo to CIA black sites to torture. As Professor Goodman wrote:
“By declining to specify what it means to be ‘engaged in combat’ the letter does not foreclose the possible scenario – however hypothetical – of a military drone strike, against a United States citizen, on American soil. It also raises anew questions about the standards the administration has used in deciding to use drone strikes to kill Americans suspected of terrorist involvement overseas . . .
“The Obama administration’s continued refusal to do so should alarm any American concerned about the constitutional right of our citizens – no matter what evil they may or may not be engaged in – to due process under the law. For those Americans, Mr. Holder’s seemingly simple but maddeningly vague letter offers no reassurance.”
Indeed, as both Law Professor Kevin Jon Heller and Marcy Wheeler noted, Holder, by deleting the word “actively” from Paul’s question (can you kill someone not “actively engaged in combat”?), raised more questions than he answered. As Professor Heller wrote:
“‘Engaged in combat’ seems like a much broader standard than ‘senior operational leader’. which the recently disclosed White Paper described as a necessary condition of killing an American citizen overseas. Does that mean the President can kill an American citizen inside the US who is a lower-ranking member of al-Qaeda or an associated force? . . . .
“What does ‘engaged in combat’ mean? That is a particularly important question, given that Holder did not restrict killing an American inside the US to senior operational leaders and deleted ‘actively’ from Paul’s question. Does ‘engaging’ require participation in planning or executing a terrorist attack? Does any kind of direct participation in hostilities qualify? Do acts short of direct participation in hostilities – such as financing terrorism or propagandizing – qualify? Is mere membership, however loosely defined by the US, enough?”
Particularly since the Obama administration continues to conceal the legal memos defining its claimed powers – memos we would need to read to understand what it means by “engaged in combat” – the Holder letter should exacerbate concerns, not resolve them. As Digby, comparing Bush and Obama legal language on these issues,wrote yesterday about Holder’s letter: “It’s fair to say that these odd phrasings and very particular choices of words are not an accident and anyone with common sense can tell instantly that by being so precise, they are hiding something.”
At best, Holder’s letter begs the question: what do you mean when you accuse someone of being “engaged in combat”? And what are the exact limits of your power to target US citizens for execution without due process? That these questions even need to be asked underscores how urgently needed Paul’s filibuster was, and how much more serious pushback is still merited. But the primary obstacle to this effort has been, and remains, that the Democrats who spent all that time parading around as champions of these political values are now at the head of the line leading the war against them.