The media seemed to treat Rand Paul’s query to Attorney General Eric Holder about the targeting with drones of U.S. citizens on American soil as kinda kooky – that is, implying that it could never happen in the great United States. Nationalistic war hawks, such as Senators Lindsay Graham and John McCain, also pooh poohed the idea that any president – Democrat or Republican – would ever even think about targeting an American in a café.
However, Paul’s now famous filibuster of John Brennan’s ascension to CIA director–which attempted to rein in executive power relating to drone targeting–and his pledge to continue scrutiny of the drone program are laudable. As he continues this quest, however, he should refocus his effort on the most important issue involved. Otherwise, he may inadvertently allow the president to extra-constitutionally expand his power.
The impetus for Paul’s filibustering of the Brennan nomination evidently was a written response he received from Attorney General Eric Holder that declined to rule out lethal drone strikes inside the United States in "extraordinary circumstances," such as a "catastrophic attack" of the type at Pearl Harbor or on 9/11.
Paul’s filibuster of Brennan then brought another response from Holder to 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.
With this second response, Paul declared victory, ended his filibuster, and allowed a vote on Brennan.
What did Paul actually get from the Obama administration? Unfortunately, not as much as he thinks. The problem is with Holder’s response is the phrase "not engaged in combat." Of course, the George W. Bush administration pioneered the concept that terrorists, who were given the designation "enemy combatants," had brought the battlefield to American soil. Because the Obama administration has adopted most of the Bush administration’s questionable policies on terrorism and civil liberties, Holder and company could just claim that any American they killed – even one sipping tea at a café – was a terror suspect plotting combat (that is, a terror strike) against the United States. In fact, Paul has probably inadvertently expanded the Obama administration’s freedom of action. Previously Holder had seemed to allow drone strikes on U.S. soil only in the case of "catastrophic attacks."
Paul and other civil libertarians of both parties, for example, Senator Ron Wyden, Democrat from Oregon, would do better to concentrate less on U.S. citizenship and more on "imminent" threats of attack against the United States, no matter what citizenship the attackers possess. This focus also should be used to examine Obama’s drone campaign overseas.
The records of the Constitutional Convention in 1787 indicate that the framers initially allowed Congress to "make war," but changed it to "declare" war after James Madison and Eldridge Gerry proposed, "leaving to the Executive the power to repel sudden attacks." Thus, the Constitution would seem to allow the president to take military action against even Americans on U.S. soil if they are attempting an attack inside the United States – say ordering an armed drone to shoot down a small plane filled with American terrorists and explosives that was on course to run into a tall building. The focus then should be on holding the president to repelling sudden or "imminent" attacks, not on whether he or she is using force against Americans.
On this same issue, President Obama also has been slippery in his overseas drone campaigns. Although the president has not fully made the legal rationale for drone campaigns public (itself a huge problem in a republic), Attorney General Holder’s white paper on killing U.S. citizens abroad argued that such killing is lawful if the citizen poses an "imminent threat" and "capture is infeasible." This rationale is probably legitimate under the Constitution, as long as the imminent threat is to the United States (which is not clear). The real problem is that the white paper then basically nullifies the words "imminent threat" by saying "imminence" requires no "clear evidence" of an attack "in the immediate future." (The requirement for capture can also be waived because of "feasibility," "undue risk to U.S. personnel," or foreign objections.)
Obama’s drone wars in Yemen, Somalia, and mostly in Pakistan are unconstitutional because they have not been authorized by Congress and do not combat imminent threats to the United States. Drone warfare in Afghanistan and Pakistan is congressionally authorized by the Authorization of the Use of Military Force (AUMF) against only the perpetrators of the 9/11 attacks and those that harbored them – that is, al Qaeda and the Afghan Taliban. In Pakistan, after running out of these targets, the administration is now attacking the Pakistani Taliban, an organization that did not even exist on 9/11. Similarly, although the U.S. is using drones in Yemen to kill members of a regional affiliate of al Qaeda – including American Anwar al Awlaki and his innocent American son – the war falls outside the congressional authorization, because the group had no role in 9/11. Also, such military action would be stretching the framers’ exemption allowing the president to "repel sudden attacks," because this U.S. war has been now been going on for years. The framers intended that any exemption be terminated, and a war be congressionally authorized, when the crisis had passed. The problems of no congressional authorization and no imminent threat to the United States also exist in Somalia.
Rand Paul’s scrutiny of the Obama administration’s drone campaign is courageous and praiseworthy, and we don’t want to turn America into a constant battlefield against suspected terrorists, as he astutely fears. However, the way to limit executive power is not to focus on the killing of Americans but to restrict the president’s authority to kill anyone – including U.S. citizens – only to dire cases of imminent attack. The founders’ way of framing the issue is still the best.