“Engaged in Combat”

Last night, Rand Paul said this:

Well, words do make a difference, and I would feel a little more comfortable if we would get in writing a letter that says he doesn’t believe killing people not actively engaged in combat with drones in America, on American soil, is constitutional.

Today, Eric Holder wrote Paul this 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.

Aside from noting that Holder took out the “actively” modifier in Paul’s statement (though Paul said some version of this so many times last night that Holder’s formulation might be justified by one of those other ones), I’d have to say that Paul has only managed to move the pea under a different shell in this shell game.

Because now we need a definition of what “engaged in combat” means.

 

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

27 replies
  1. Joseph says:

    And how about an answer to the broader question of “Does the President have the authority to use any means to kill an American not engaged in combat on American soil?”

  2. emptywheel says:

    Also note: Paul did not use the word “militarized” last night. That’s implicit in a killer drone, of course, but I do wonder whether DOJ just came up with the formulation they wanted to answer.

  3. bsbafflesbrains says:

    Why is it even a question? The due process clause has an entire body of law behind it and the answer to the question can only be NO. The fact that the administration has redefined “immenent” should be just as troubling to all of us. Torture has been redefined as well. It’s Orwellian that this is going on.

  4. JTMinIA says:

    Looks like Holder needs a refresher course on how to write a sentence that isn’t ambiguous. At a minimum, he needs to learn how to use commas (which Paul clearly does understand).

    “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” has two very different readings, both of which are accurate. The question can be read as Rand asked it. But the question can also be read as being about all Americans who are not currently engaged in combat within the US (which, amusingly enough, would include Awlaki, since Awlaki wasn’t in the US when he was killed, so he clearly wasn’t engaged in combat within the US). In other words, because Holder can’t write a clear sentence, he just said – in public – that the killing of Awlaki was not legal.

    Pinhead.

  5. JTMinIA says:

    To add to the above, I would love it if Paul asked a follow-up question: “if the President does not have the authority to kill an American, on US soil, when said American is not engaged in combat, by what legal argument does the President gain the authority to kill the same American when he or she leaves the country?”

    This isn’t about drones. It’s about keeping our tourism dollars at home. tee hee

  6. pdaly says:

    @JTMinIA:

    Good point. It also implies the president thinks it is legal to drone an American to death if he/she is in combat on American soil.
    And if an American is “combatting”, despite onlookers’ judgments to the contrary, then no judge/juries apply, because, well “national security!”

  7. earlofhuntingdon says:

    @emptywheel: I would add “weaponized drone” to the list of remarks that need careful parsing. This administration revises its public claims of authority faster than DC’s hiring door revolves. It doesn’t stick to one excuse any longer than it takes McDonald’s to trash a commercial that doesn’t sell hamburgers. It moves on, thinks up another one. Presumably, that’s because the public rationales it sells are for political consumption and are not regarded as defining, limiting, or authorizing conduct the government may legally engage in.

    Defining a drone as “weaponized”, for example, might define only those drones whose “primary purpose” is to use its weapons, or to use its weapons to kill people (as opposed to destroying other things). That may exclude drones with weapons capabilities but whose “primary purpose” is something else and that its weapons are only “defensive”. Or it may relate only to drones operated by certain but not all US agencies. The permutations that could be used as escape clauses are endless.

    That gets us back to our concern that this administration rarely says what it means and doesn’t mean what it says. Except when claiming that pursuing whistleblowers and open source advocates as if they were existential threats to the universe is essential, but that it would be “too hard” or distract from the president’s agenda to prosecute perpetrators of financial crimes.

  8. JTMinIA says:

    @pdaly: Oh, it’s better than that. First we have my original point, that the “Oxford” reading of what Holder wrote is that the President can ONLY kill an American if he or she is in the US and is engaged in combat. But we also have the implication, due to the lack of any specification of against whom the American engaged in combat is fighting, that the President can kill Americans who are defending the homeland against attack … but only if said American is still on US soil. If I were a soldier, I’d be on the next plane out of here.

  9. JTMinIA says:

    But there’s more….

    Why would Holder hate commas so much? Could it be because commas resemble bananas? That would make sense (to me).

  10. Duncan Hare says:

    “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.”

    Waco. The answer to that question is yes.

  11. ess emm says:

    I guess I’m in the minority but I think Holder is where we want him to be on this (and about freaking time). Holder also told Cruz that it was unconstitutional to use a drone to kill an American that was known to be a terrorist as she sat in a cafe if she wasnt an imminent threat. Then he refered to domestic law enforcement meaning of imminent.

    Unfortunately, all this talk about drones in the US distracts from the broader issue: targeted killing of Americans both in the US and overseas.

  12. SpanishInquisition says:

    @Bustednuckles: Actually we’re way past playing word games. What Obama does is regardless of what the law is, he just has a memo written up for saying it means whatever he wants it to mean. We saw this already with the memos how ‘imminent threat’ lost all meaning.

    In some sense it doesn’t really matter how or if Obama answers since he’ll just secretly have what he said mean what he wants. What we need are all the legal justifications where we see all the word games being played. Holder’s answer is effectively meaningless since what Holder said can be parsed into non-sense – like defining “weaponized” to not include what everyone would considered to be a weapon, also there’s killing by hit squads on the ground, etc, which Holder’s answer didn’t cover outright old school hit squads.

  13. SpanishInquisition says:

    @ess emm: “Holder also told Cruz that it was unconstitutional to use a drone to kill an American that was known to be a terrorist as she sat in a cafe if she wasnt an imminent threat”

    However the Obama administration already deamed alleged terrorists as imminent threats by definition per the released OLC summary – they went into great detail with their justification saying that they can’t know every operation being planned, so therefore all alleged terrorists are automatic imminent threats. What Holder/Obama say is more or less meaningless, it’s what they write up behind closed doors and refuse to hand over to Congress or the public that really matters.

  14. bsbafflesbrains says:

    @emptywheel: It is not a Constitutional Democracy anymore. The three branches were designed to be checks and balances on the power given to each.

  15. joanneleon says:

    Does “engaged in combat” mean the same thing as “combatant”? I assume it does. Wasn’t there a strange redefinition of that in recent years too? Between that and Homeland Security stockpiling 20 billion rounds of ammunition, supposedly using urgent need as a justification for the expenditure.. wtf are they expecting?

  16. Quelle Surprise says:

    A new generation of al-Qaeda offshoots “forcing” 0 administration to examine legal basis for its targeted killing program can be extended to “militant” groups with little or no connection to the organization responsible for the attacks on 11 September 2001

    http://www.washingtonpost.com/world/national-security/administration-debates-stretching-911-law-to-go-after-new-al-qaeda-offshoots/2013/03/06/fd2574a0-85e5-11e2-9d71-f0feafdd1394_story.html

  17. ess emm says:

    @SpanishInquisition:
    All good points. The definition of imminence is important, and it would have been VERY helpful if Holder would have straight out said a suspected terrorist is an automatic imminent threat.

    But maybe there is a more recent memo that supersedes the mishmash unclassified white paper. Perhaps there is a new memo that is the basis for Obama’s upcoming speech that Holder alluded to. Just wild speculation here.

  18. beowulf says:

    @JTMinIA:

    Hey guys, please read TMinIA’s post (6) above… Damn that is a good point.

    OK, you’re back. Holder screwed up the drafting of this letter. The phrase “American not engaged in combat on American soil” is ambiguous, and like Scalia wrote in US v. Santos, ties go to defendant b/c of rule of lenity (“This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead”).

    As for “engaged in combat”, that’s a poor choice of words (from Holder’s standpoint) instead of simply using “combatant” since it focuses on conduct and not status. Its the difference between saying Ed is drunk and Ed is a drunk. Or in terms of DOD’s Standing Rules of Engagement, its the difference between Hostile Act and Hostile Enemy Force. Drone pilot presumably then can’t launch a missile strike unless they witness (US citizen) target engaged in hostile act or demonstrating hostile intent (of course “demonstrating” an intent is itself an act, no?) on American soil. I think the Admin is 100% wrong in their drone policy but that letter made me wince, I think Rand Paul just stampeded the Admin into doing something it didn’t intend to do.

    “b. Declared Hostile Force. Any civilian, paramilitary or military force or terrorist that has been declared hostile by appropriate U.S. authority. Once a force is declared to be “hostile,” U.S. units may engage it without observing a hostile act or demonstration of hostile intent; i.e., the basis for engagement shifts from conduct to status.”
    http://bit.ly/14zEjpY

  19. P J Evans says:

    DiFi is saying they won’t use drones on us.

    I’d be more willing to believe her if she’d been doing her job for the last several years.

  20. geoschmidt says:

    Well putting low quality people in positions, well, all you need to do, is … figure, those guys, might not perform… might not be up to the task!!!!!

    A little rat looking guy, how the hell…! How the hell!

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