This week, Eric Holder wrote to Rand Paul in response to a letter the senator wrote to John Brennan inquiring whether the administration could use drones to kill American citizens on American soil. It was difficult to miss, with headlines blazoned everywhere, from The Huffington Post ("Eric Holder: Drone Strike To Kill U.S. Citizen On American Soil Legal, Hypothetically") to CNN ("Holder does not rule out drone strike scenario in U.S.") to Mediaite ("Obama Administration: Yes, The President Can Drone Strike Americans On U.S. Soil") -- even Glenn Beck's The Blaze carried the story ("Revealed: Holder Says President Could Authorize Military Drone Strikes Inside U.S. in Emergency").
But the headlines were mostly misleading.
If we dig beyond the headlines and read the actual letter Holder wrote, we'd realize that Holder absolutely did not write what those headlines would lead us to believe.
Before we continue, I'd like to make my position on all of this perfectly clear because it's becoming increasingly difficult to carry on a rational discussion about the use of lethal force against enemy combatants born in the U.S., as well as the use of drones as a military weapon. The president is on shaky ground when it comes to these related issues, given the endless nature of the war on terrorism and the war powers provided by the post-9/11 Authorization for Use of Military Force (endless war equals endless war powers, and such a prospect is unacceptable). The AUMF should be repealed, the president's war powers rescinded and the use of drones regulated and defined, otherwise we're allowing the president to retain war powers in perpetuity, making them ostensibly permanent.
But however much I disagree with the policy and the potential abuse of the technology, I can easily understand the administration's position. Congress granted it the wartime authority, both in terms of war powers and in terms of funding for drone technology. Under the current status of the executive branch (which I believe ought to be repealed) the White House, the CIA and the Pentagon has the power to fight the enemy as they see it, as has every administration that's operated under congressionally approved war powers.
Got it? I'm opposed the administration retaining its war powers. Against it.
So back to it. Nearly half of Holder's one-page letter discussed how it's not the administration's policy to use drones on American soil. In fact, Holder says the administration has no intention of ever doing so. Though if you read the headlines and leads in each of the above items, you'd think the White House was launching drones off the White House lawn and deploying them to your back yard. Holder continued:
As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.
This is an explicit rejection of drone strikes against citizens inside the borders of the United States in lieu of a fairly straightforward embrace of traditional law enforcement mechanisms. And it's not a surprise. Since the outset, the administration has attempted to migrate the counter-terrorism process into line with something more closely resembling a traditional legal and judicial process. If you recall, the administration attempted to close Guantanamo and move its detainees to maximum security prisons on the mainland, but nearly every member of Congress, including very liberal members by the way, blocked funding for the move while simultaneously screaming the familiar "not in my back yard" refrain. Furthermore, Holder attempted to bring suspected terrorists to trial in American courts -- another move that was almost universally rejected.
In the third paragraph of his memo, Holder responded to Rand Paul's "hypothetical" scenario with speculation about an impending Pearl Harbor or 9/11 attack. But the paragraph contains no mentions of drones. None. Instead, Holder wrote that the president has the power to "authorize the military to use lethal force" against armed attackers. Granted, it's conceivable Holder was implying the use of drones, but he didn't explicitly write about the use of drones. Then again, what difference does the weapon make? If a hijacked plane is hurtling toward a skyscraper, does it really matter whether it's potentially shot down by a fighter jet (as were deployed on 9/11) or with a surface to air missile or with a predator drone?
As big a conundrum as this presents, he president absolutely has the authority to shoot down a hijacked airplane in a 9/11 scenario. Likewise with a Pearl Harbor attack -- even more so given the presence of foreign attackers. Or what if a Secret Service agent or an armed military escort spots a man in a window overlooking the presidential motorcade and the man is aiming a rifle at the president? Naturally the Secret Service agent is within the boundaries of the law to shoot that man in the head. These are the kinds of situations the Holder letter described, and the president has always held these powers long before the war on terror and long before Barack Obama.
Thus, this week's array of headlines weren't entirely inaccurate -- jumping to the conclusion that Holder believes the president reserves the right to use drones against American citizens on our soil, full stop. It's much easier, more dramatic and there's more potential for web traffic to hyper-jump to the conclusion that the attorney general put into writing that the president can wantonly deploy drones to patrol our skies with the authority to kill you if you're somehow suspected of being a threat to national security. He did nothing of the sort.
Fast forward to yesterday when Holder wrote a second letter to Rand Paul further clarifying the issue.
Dear Senator Paul:
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.
Eric H. Holder, Jr.
So the question should be more or less settled. The administration confirms that it doesn't have the authority to kill you while you're sitting at a cafe drinking coffee, as Sen. Ted Cruz (R-TX) described this week. Furthermore, there's no authority granted to the president to deploy lethal force against an American citizen on American soil unless they're engaged in an attack against Americans.
Now tell me, I wonder how Rand Paul -- who, by the way, recently grilled Hillary Clinton in a senate hearing over the president's alleged failure in Benghazi -- would react if President Obama had refused to thwart such attacks and allowed them to happen. It's not a stretch to assume that Paul and his Republican Party would launch an inquisition leading to an impeachment trial if Obama had the opportunity but failed to shoot down a hijacked airliner and it crashed into, say, the U.S. Capitol building or a civilian facility like the Georgetown University Hospital. Imagine the Benghazi screeching times a gazillion.
But not once has any Republican, including Cruz and Rand Paul, mentioned anything about ending the war on terrorism or repealing the 2001 Authorization for Use of Military Force (AUMF). The lack of nuance, as well as the lack of a sense of history on both the far-right (and the far-left for that matter) is eerily coincidental. Again, it's important to have oversight on drones, but let's get real here. Too many players seem to have hastily constructed a bridge of paranoia and hyperbole between "a guy having a coffee" and "hijacked planes careening towards skyscrapers."
Other than the addition of a new weapon in the arsenal, what exactly has changed in terms of the president's military powers and policies inside the borders of the United States? Based on Holder's letter, nothing -- traditional law enforcement in nearly every circumstance and lethal military force if another 9/11 or Pearl Harbor happens to be in progress.
There's no harm in having an ongoing conversation about presidential powers and military authority. Such an endeavor requires perpetual diligence from both citizens and the press. But there's currently so much hysteria circulating around the topic of drones it's nearly impossible to see beyond the apoplexy. Historical precedent and heretofore commonly acknowledged presidential powers are forgotten, and too many people become instantly outraged whenever those powers are brought up in a 2013 context. Yes, throughout American history, the military and law enforcement has reserved the right to use lethal force to thwart crimes inside the United States. But when the word "drones" gets shoehorned into the context, everyone flips out and the truth gets lost. That's most certainly the case with the Holder letter.
Cross-posted at The Daily Banter.
Subscribe to the uncensored and totally raw Bob & Chez Show After Party podcast.
Click here to listen to the Bubble Genius Bob & Chez Show podcast.
BobCesca.com Blog with special thanks to Price Benowitz LLP, Virginia.