Color Me Unimpressed by Holder’s Response to Paul

by Kevin Jon Heller

As everyone likely knows by now, Rand Paul has ended his remarkable talking filibuster because Attorney General Holder officially responded “no” to the question “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” Is it just me, or does Holder’s answer actually raise more questions than it answers?

(1) “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?

(2) Why (to second Marcy Wheeler) did Holder delete one word from Paul’s question, changing “not actively engaged in combat” to “not engaged in combat”? Does that indicate that the President can kill an American inside the US whose activities qualify as “engaging in combat” even if they would not qualify as “actively engaging in combat”? What is the difference? What does the US understand by “actively”?

(3) 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?

Come on, Rand. Stand up again and get us some real answers.

http://opiniojuris.org/2013/03/07/color-me-unimpressed-by-holders-response-to-paul/

26 Responses

  1. If you apply the logic used by the Supreme Court in Reid v Covert, then it’s axiomatic that these creatures of the Constitution can’t do anything overseas that they are prohibited from doing here at home.
     
    They’ve already killed US citizens overseas in drone strikes who were not engaged in combat, so they most probably have concluded they can do the same thing on US soil.

  2. Hostage, your logic is faulty, and is in direct conflict to AG Holder’s response.  Think it through again.
    Kevin, in my humble (and personal) opinion:
    (1A) “Engaged in combat” is not “a much broader standard than “senior operational leader,” but is potentially a different, and at least a somewhat narrower standard (it at least adds the condition that he be engaged in combat).  For example, if an American is a senior operational leader for AQ (like Anwar al-Awlaki), but is within the U.S. and is NOT engaged in combat, then AG Holder’s response clarifies that the President does not have the authority to use a UAV to kill him while he is in the U.S., unless/until he becomes engaged in combat within the U.S.
    (1B)  “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?”  All we can know for sure is that AG Holder ruled out that he would not be targetable unless he was engaged in combat within the U.S.  Figuratively and literally, the ‘trigger’ may simply be whether or not he is engaged in combat in the U.S., regardless of his seniority.  If he could not be captured, then he could be targeted by a UAV.
    (2) “Why did Holder delete one word from Paul’s question, changing “not actively engaged in combat” to “not engaged in combat”?””  If you had any military experience you would know that whether someone is engaged in combat is like being pregnant–you can’t just be “a little” engaged in combat.  Either you are or you’re not–it’s a fairly objective standard, based upon an admittedly somewhat subjective (but hopefully well-informed) assessment of the underlying facts.
    (3) “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?”  Planning or executing a terrorist attack is most likely sufficient, as would be taking a DPH, but not providing MST or mere membership in AQ.

  3. One quick follow-up:  Ben Wittes said it much more eloquently and succinctly when he posted today (http://www.lawfareblog.com/2013/03/thoughts-on-rand-pauls-publicity-stunt/) that Sen. Rand Paul’s filibuster was a publicity stunt, and that he posed a dumb question:
    .
    There are about a hundred interesting and difficult questions to pose to the administration about targeted killings and drones. Sen. Paul started with one of the least interesting: Can the government kill an American with a drone domestically? It’s about as interesting a question as, say, asking whether the Air Force can conduct air strikes against targets in Chicago. In fact, it’s the exact same question. And the answer to it is exactly the same: the Air Force would never do that except under conditions so extreme that they implicate all sorts of inherent defense authorities that, of course, exist.
    Having started with a dumb question, Paul then posed it in a particularly ridiculous way, as Jack described yesterday. Now the targets are no longer people who pose imminent threats and whose capture is not feasible (the only U.S. citizens the administration has ever claimed the authority to target). Now the question, roughly translated, is whether the Air Force can conduct strikes against targets in Chicago who are “in a cafe.” Or, to put it another way, Paul is asking whether Obama can, like Bashar Assad, murder his own people when he could arrest them. The answer to that question is equally obvious—and nothing, not a word, the administration has said should raise the slightest anxiety that this is what it believes.

  4. I suspect that Holder is responding to a question regarding present U.S. policy and not international law as such.  In any event, the United States has killed several hundred thousand U.S. citizens in the United States during a belligerency (i.e., the U.S. Civil War) and, if the laws of war were not violated, there was no consitutional issue raised (after the Prize Cases at least).  Of course, the United States could do so again if needed and could target any enemy from abroad who happens to be in the U.S. during an armed conflict (with a rifle if not a drone —  and, in the future, drones might become as small as a dragonfly).
    Could the United States also target a U.S. citizen in the United States who is a DPAA (direct participant in armed attacks) under the self-defense paradigm?  Sure!  And there is no immunity for U.S. attacker DPAAs under the law of self-defense or for U.S. DPHs under the laws of war.
    Should the Constitution’s “due” process clause be informed by relevant international law?  Sure!  It has been in the past with respect to other types of contexts (and so has the 1st, 6th, 8th, and 14th Amends.). Additionally, the President’s powers are enhanced by international law precisely because the President must faithfully execute the laws.  Furthermore, principles of necessity and proportionality are part of such laws.
    What’s all the fuss about? Certainly not international law as such.

  5. Response…”Hostage, your logic is faulty, and is in direct conflict to AG Holder’s response.  Think it through again.”
     
    Nothing I said was contradicted by anything contained in Holder’s weasel-worded statement.
     
    My logic is that: 1) the Court’s have ruled that neither the Executive nor the Congress is allowed to do anything outside the territory of the United States that is prohibited by the Constitution; and 2) if the President, his advisors, and the Congressional Intelligence Committees (See Sen. Feinstein Says Intelligence Committee Reviews Drone Attacks) have adopted classified procedures that allow the creation and use of kill lists, a decision matrix, or signature strikes that target citizens overseas, then it logically follows that they do not believe there are any Constitutional prohibitions against using those same procedures on US soil too. 
     
     
    I agree completely with Jordan, that the government can, and has, targeted belligerent citizens on US soil in the past. None of the cases, like Ex parte Milligan, dealt specifically with the issue of kill versus capture or cited any blanket prohibition against the application of the laws of war or the use of deadly force in situations involving citizens who actively participate in armed conflicts as part of a rebellion, invasion, & etc.

  6. BattleJAG you say (2) “Why did Holder delete one word from Paul’s question, changing “notactively engaged in combat” to “not engaged in combat”?””  If you had any military experience you would know that whether someone is engaged in combat is like being pregnant–you can’t just be “a little” engaged in combat.
     
    I spent 21 years in the military. Common Article 3 explicitly includes “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause”.
     
    The US armed forces took that one step further during the war in Vietnam and printed hundreds of thousands of wallet cards which said there was a duty to disarm, and not kill, captured enemy combatants who had not yet laid down all of their arms: “The captive in your hands must be disarmed, searched, secured and watched. But he must also be treated at all times as a human being. He must not be tortured, killed, mutilated, or degraded, even if he refuses to talk.”
    http://www.history.army.mil/books/Vietnam/Law-War/Law-Apph.htm 
     
    The ruling of the Israeli High Court of Justice in the Targeted Killings case was based upon customary international law. The Court held that civilians taking a direct part in hostilities are not protected at such time that they are doing so, but that they do enjoy comprehensive protection of their lives, liberty, and property at all other times and should be targeted for capture in those circumstances. 
     

  7. My first take was that Obama could use a helicopter instead.  It might have been an asset for Paul if he had had the help of a civil liberties attorney.  At least Paul has pried open a door. Now if we can keep it open we might get a few more answers.
    Even if Holder had used the word “actively” it would still have been their word against ? in the aftermath.  Basically they can do what they please–and generally do.
    Good points in the article.

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