An important footnote to the filibuster heard ’round the world. At first blush, this seems mundane: Paul’s interest was in limiting drone strikes on U.S. citizens on U.S. soil, not overseas where all of the actual drone warfare (so far) is conducted, so of course it hasn’t changed current drone policy. But what about future drone policy, which may or may not involve strikes on American soil? Turns out it … hasn’t changed that either.
“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…
“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.
That’s the whole ballgame. Paul wants to narrow the definition of “enemy combatant” for American citizens so that, if they’re here in the U.S., they receive some form of due process that a foreign jihadi overseas wouldn’t. The feds can still target them if they’re posing an ‘imminent threat,” but Paul wants “imminent” defined for American enemy combatants basically the same way it is under criminal law. Just as the cops can shoot a bad guy who’s pointing a gun in order to protect the public, the White House could take out an American-citizen jihadi here in U.S. if there’s an attack in progress (or, I guess, just about to begin). Otherwise, due process. The White House’s definition of “imminent,” per the legal memo they drafted to justify targeting Awlaki, is that if you’re a member of Al Qaeda and engaged in plotting attacks then you’re always an imminent threat — i.e. “engaged in combat” — no matter what you’re doing at any given moment. You’re always subject to assassination.
The upshot of the excerpt above is that Holder’s letter was carefully phrased to make it look like he was conceding to Paul when in fact he was conceding nothing. Which, actually, was obvious as soon as it was published; that’s why I was surprised when Paul celebrated it as a victory rather than dismissing it as yet another dodge. Maybe he figures it doesn’t matter at this point now that he and Ted Cruz are working to get a Senate vote on their amendment banning the president from drone strikes inside the U.S. against citizens. (Another brilliant political move, incidentally. Imagine the Democratic angst in trying to decide how to vote on that.) If you’re going to try to roll back a tiny bit of executive authority via legislation, it doesn’t much matter what Holder thinks. But if the vote fails — and, Senate Democrats being loyal partisans, I suspect it will — then it does matter. Paul should have kept pushing Holder on Friday after the letter was sent. As it is, while Trump’s wrong to say that the filibuster accomplished “nothing,” he’s more correct vis-a-vis actual drone policy than it may have seemed three days ago.
By the way, if you missed the NYT’s chronicle of the Awlaki assassination on Saturday, read it now. Rarely will you read a news story about a big-name member of Al Qaeda being liquidated where the most gripping part is the lawyers wrestling with statutes, but that’s true of this one — thanks to a twist. 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.) See now why I think Senate Democrats will go in the tank for O if Paul makes them vote on drones?
Exit question: What “due process matrix” does Paul have in mind for jihadis based on citizenship and location? What I mean is, if being a U.S. citizen located in the U.S. means you get maximum due process, and if being a foreign citizen who’s located overseas means you get minimal, what about a U.S. citizen located overseas (i.e. Awlaki) or a foreign citizen located here in the U.S.? Do the latter two get some intermediate level of legal protection? Doesn’t due process apply to all persons inside the U.S., not just citizens? I’m sincerely curious to hear him elaborate on the legal framework he has in mind.