Sen. Paul's communications team declared victory after Eric Holder sent a letter to Paul today saying that no, President Obama does not claim "the authority to use a weaponized drone to kill an American not engaged in combat on American soil." ... While it sounds nice that if an American isn't "engaged in combat," she'll be safe, that still leaves the Obama Administration a lot of wiggle room. And precious little oversight.
That was last Thursday. Fast forward to today:
“Sen. Paul’s 13 hours on the Senate floor won’t have any practical effect on our policy and how we’re going after terrorists on a day-to-day basis,” a senior administration official told Yahoo News on condition of anonymity. But didn’t Paul wring a letter out of Obama's top lawyer, Attorney General Eric Holder, in which he effectively promised that Americans who aren’t lining up to take a shot at the Capitol with a grenade launcher (to paraphrase the senator) are safe? In a word: No. During his 13 hours on the Senate floor, Paul repeatedly asked whether Obama believed he had the authority to kill an American, on U.S. soil, who was not “actively attacking” America. The question prompted Holder to respond. “Dear Senator Paul,” Holder said in a 43-word letter. “It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.” Holder didn't use the phrase “actively attacking.” And administration officials privately agreed on Friday that “not engaged in combat” was the key phrase going forward. None of them agreed to define the expression on the record.
Which returns us to Sen. Paul's core question. The administration failed to explicitly define relevant terms like "combatant" and "imminent" in its recently-leaked drone memos, and has conspicuously declined to do so throughout all subsequent discussions of the controversy. Let's call it strategic ambiguity. Last week, the junior Senator from Kentucky hoped to box the White House into conceding at least one very narrow circumstance under which the president lacks the Constitutional authority to order a drone strike on an American citizen on US soil: If the potential target were not in the process of carrying out an active attack. In other words, even if this hypothetical citizen were in fact a nefarious character intent on taking part in a destructive act at some point, the government couldn't just take him out while eating at a cafe or sleeping in bed. Paul wanted confirmation that this "(currently) passive citizen/terrorist" scenario would require an arrest, and would bar a summary execution. Holder's letter appeared to satisfy that concern, but the administration is now admitting that the devil resides in the definitions -- and that they're not too interested in doing much more defining, thank you. This is why derisive chuckling about "paranoia" from the Left and irrelevant fact-checks from the Right miss the point. Rand Paul wasn't making dark intimations about the Obama White House's active plans or intentions. Paul went out of his way to aver exactly the opposite during last week's filibuster. He was merely seeking a straight answer about one very specific limit on executive power vis-a-vis due process, citizens, and drones. The quasi-answer he received was crafted for the purpose of appearing to settle the question without actually offering a meaningful resolution on substance. Parting thoughts: (1) Donald Trump is blasting Paul's filibuster effort as essentially useless. Given today's developments -- and I hate to ask this -- but is Trump right? (2) Shameless duplicity on parade:
David Barron and Martin Lederman, the two DOJ honchos who signed off on the legality of assassinating Awlaki, co-authored a famous critique of Bush’s counterterror policies a few years ago in the Harvard Law Review. They thought warrantless wiretapping, among other techniques used by Bush-era counterterror officials, were unconstitutional; their reward for that was being hired by Obama’s Office of Legal Counsel, where they ended up making the case for … executive authority to kill United States citizens without due process. That’s the second example I can think of in which a prominent left-wing legal academic spent the Bush years inveighing against presidential power gone wild and then joined the Obama administration, only to be tasked with defending power grabs that were arguably even more legally dubious. (Harold Koh was the other.)
Take it away, Glenn Greenwald.
UPDATE - Here's Kevin talking drones, filibusters and cynicism on Bloggingheads TV: