Would it be constitutional to drone-blast an innocent grandmother while she was walking her toy dog across the street? Why can’t Eric Holder answer this question? Why is it so difficult for him to straightforwardly admit that the president doesn’t have the power to drone-blast innocent grandmothers who are walking their dogs? Let’s say that you are sitting at a sidewalk table at a trendy cafe in Houston, Texas. Is there any reason at all that the president can’t drone-blast you to hell? Imagine that you are sleeping at home in bed with visions of sugar-plums dancing in your head. Is there any restriction that would prevent the president from killing you absent an immediate threat?
Rand Paul is ending his 13-hour speech.
Cruz’s initial formulation did not include the reasons the government might want to kill the person, because if the answer to the question is no – if it is unconstitutional for the government to kill someone who is not an immediate threat – the reasons do not matter. That’s why he phrased the question the way he did. It is the proper phrasing. If the reasons do not matter, don’t complicate the question with them, and, if they do, then the answer must be yes, killing such a person under some circumstances is Constitutional. Cruz’s invites a simple No answer, and instead Holder pretended to think Cruz was saying people should be executed for drinking coffee, so Cruz spelled out the obvious. And you’re continuing with an objection that was merely a pretense.
The purpose of all this is to get the Democrats strongly committed to an unconstrained National Security State. The Repubs will turn on a dime if they return to power, but the Dems are not so nimble. They are currently tying their own hands.
Those questions are funny the way that mockery of the trillion dollar coin was funny. Except that in both issues, mockery is an easy defense against dealing with substantive analysis by experts in their fields. I’m going with the ACLU on this issue.
If we don’t want The Stupid to get credit for defending our constitutional rights, then we progressives will need to act less like partisans and more like citizens.
There’s also this:
http://www.dailykos.com/story/2013/03/06/1188476/-Answer-the-question-Mr-President
“Just because you’re paranoid doesn’t mean they’re not out to get you.”
I had that poster on my bedroom wall as a teenager in, oh, 1973 or so. It’s timeless.
Yes, Rand Paul, Ted Cruz, et al come off as paranoid fools. So do the people on the left who think Chavez was really assassinated by the Americans. But in both cases, there are substantive reasons for their paranoia to be fueled. The US has never acknowledged that it did, in fact, back an effort to assassinate Chavez and overthrow the democratically elected Venezuelan government in 2002. And the Obama administration has, in fact – multiple times, and with a “due process” contained entirely in the Executive Branch – assassinated US citizens who posed no imminent threat to US security. The fact that if it stands as precedent, the next Republican president will embrace that doctrine eagerly, does not change the terrifying nature of that precedent. Paranoid posturing notwithstanding.
The fact that we are even talking about such practices, let alone doing them, let alone doing them with no serious public controversy, would have been unthinkable 15 years ago – and it’s not like our government’s track record of regard for the sanctity of human life was very good even then. When it comes to the Constitution, international law, and basic human rights, 9-11 changed nothing. Those concepts are as valid and important now as they ever were.
The USA has survived far more serious security threats without such measures. But plenty of people in the National Security State hierarchy have used 9-11 as an excuse to eviscerate all that annoying crap imposed on them by the late, lightly regarded Bill of Rights. That includes Democrats as well as Republicans. Would you feel so sanguine about this issue if it were President Rubio defending it? Expanding it further? Because he, or his Republican doppleganger, will.
Those are good points. Although I suspect the only reason we weren’t doing this stuff 15 years ago is that we didn’t have the technology. But yes, if you are going to do drone strikes, do it right. I think the constitutional authority would be in the president’s role as commander in chief. So if he’s going to do a drone strike, he needs to be prepared to show why it’s a legitimate act of defense. Obviously you can’t be too open about it without giving away your intelligence operations, but you have to be willing to publicly own your drone strikes.
It’s annoying, too, that the program has given Rand Paul an opportunity for this kind of grandstanding. He may look foolish to you and me, but we aren’t the intended audience are we?
Then again, I’m not sure who the audience is. If I’m trying to imagine who might respond to this kind of thing, I find it hard not to notice that we’ve got a white senator asking the black attorney general to assure him that the black president isn’t going to smite his grandmother. Maybe Holder should have just told him that drone strikes only kill brown people.
There are other ways to kill American citizens without the use of a drone. Listening to Paul Rand you would think it was the only weapon that could kill a citizen.There are other methods like the old fashion ways: making a death look like an accident, elaborately and methodically setting up murder schemes, untraceable poisons, deadly viruses etc.
Oh Yeah, we do have other weapons that are capable of delivering an array of missles and rockets like the drone is able, i.e. Warthog, F-16’s, F-18’s, B-1 and B-2 bombers,F-117 Stealth, YF-22, A-12 etc. The controversy of killing Americans by these aforementioned killing machines other than the drone were never discussed by Paul Rand. Paul Rand thought bringing his name and more importantly his Libertarian Party would bring him to the political forefront, its just making him look like a promotion pig by wasting my tax dollars.
Mr. Brennan, the President, the Senator, and most of us know that the CIA has no qualms about killing. It is just one of their tools, as is the slick PR that convinces us to let the Agency continue to exist.
I am delighted to see somebody stand in their way for once.
Well, no. Not an innocent grandmother.
During all the time that the Bush administration was routinely shredding the Constitution and building up the massive security state, if I heard this once from the wingnutters, I heard it a thousand times; “If you’re not doing anything wrong, then you don’t have anything to worry about. Those who worry are the ones who have things to hide”.
How soon they forget their own advice to all us so called “liberal bedwetters”.
Even dedicated leftinesses appear to be beginning to understand that…regardless of the idiocy of many of the RatPub leaders…the Obama administration has fucked up on the security state issue.
I mean,…it’s fucked up unless one actually wants a very strong (read “potentially omnipotent”) security state.
I’m sorry, Booman…you can’t have your cake and eat it too in this instance. Being a partisan DemRat/anti-RatPub is one thing, but when the DemRats sign National defense Authorization Acts parts of which read as if they written by Goebbels it’s time to draw some lines.
You trust Obama not to use these powers unnecessarily? Great. Trust is a nice thing, and youy believe that he is a nice man. Wonderful. But do you know who the next couple of presidents are going to be? Do you think Obama knows? (Actually, considering the fixes that have been going on over he previous couple of decades maybe he does.)
A dangerous law that is “not to be used” is still a dangerous law, and supporting those who protect that law and the system that created it is just plain stupid. (Not that stupidity and partisan politics are any kind of rare partnership…)
So there we are.
Where?
jane Fonda…watch out!!!
AG
Now the right and the libertarians get to discover why the progressive bloggers almost uniformly disliked Kucinich, especially when he was mostly correct.
I find the collective freakout by the rightwing so laughable. But it just doesn’t register with them at all that this is exactly what all we crazy liberals were screaming about 10 years ago. Their brains are incapable of recognizng this fact.
Since the SEC and DOJ seem to be having a lot of problems prosecuting the banksters that terrorized/crashed the economy and who continue to wreak havoc for their own profit….
Drone strikes on Wall Street.
No doubt THEN the GOP will find their principled objections.
Win-win!
it was made with flouridated water. just sayin’. bet on it.
I am going to quote John Cole on this one:
Why can’t Eric Holder make a straight-forward statement about what the limits of the targeted killing powers of the President are?
That’s been the fundamental failing from the beginning. Brennan’s statement and Holder’s statement of over a year ago claim unlimited authority of the President. So just trust us. Just apply the “what if Bush’s people had said it” test.
It is pretty clear now that the administration is asserting Article II executive power as commander-in-chief here and not anything limited by the AUMF’s duration. As much as I trust President Obama’s wisdom in the application of this power, that is not a helpful precedent for the future.
I get it that the only reason Rand Paul is interested is that it chews up time in the Senate that could be used for moving legislation along. It is a convenient tool to adopt a civil liberties front.
But the underlying issue is real and should have been aired honestly in Brennan’s hearing instead of being stonewalled. The public needs to know what the policy of our government is with regard to targeted killings.
In addition, Brennan should be asked if the CIA does targeted killings on instructions from foreign governments in the name of alliances. There are events that suggest that he did some personal favors for his Saudi and Yemeni friends.
The problem with much of this critique is that it is no longer true. There have been a number of concessions in recent weeks. Among them:
So, no, Holder did not stonewall this week. Nor did he extend Article II executive powers in an unlimited way. He was made to repeat, in response to questions from multiple Senators, that there are constitutional and rational limits to the President’s powers. And don’t kid yourself, helping form a record of rational limits to Executive power is helpful to our goals. Establishing legal limits are important as well, but the two are not on completely independent tracks. There is a desire by many commenters here to claim that Holder’s statements in defense of standard, non-lethal forms of law enforcement are meaningless. That desire is often preventing a rational discussion from taking place here.
Please reconsider the fact that Holder’s DOJ painstakingly put together a set of policies which would have transfered the biggest fish in the Guantanamo net from military to civilian courts. In that case, the Administration was highly interested in taking away certain powers that Congress had granted it. Why? Because Holder’s DOJ wished to elevate the reputation of and show confidence in the capabilities of our standard judicial system. The standard, no-foreign-prison, no-imprisonments-without-fair-trial judicial system. It was Congress that destroyed the DOJ’s plans there.
Yet, with all these things, past and current, there’s still a desire by some to place a presumption of bad faith onto Holder and, by extension, Obama. I don’t hold with that presumption at this time. I share your wish to fight for continuing improvements in policies and clarity of legal principles, but for God’s sake, when leaders are responding by moving in your direction, it doesn’t encourage them to continue to do so by pretending that they’re NOT moving in your direction.
Those who would wish to splinter the movement over this? Please reconsider.
There is a desire by many commenters here to claim that Holder’s statements in defense of standard, non-lethal forms of law enforcement are meaningless. That desire is often preventing a rational discussion from taking place here.
Throughout this debate, people whose actual position is that using military force against al Qaeda is a bad idea have been using pseudo-legal and pseudo-constitutional language like tinsel on a Christmas tree, to throw on top of their real argument in an effort to make it look better.
So, any actual movement on legal and constitutional questions isn’t going to be recognized, because that isn’t really what they care about anyway.
Well, c’mon now, that’s going a bit far. Anyone who wants to lay claim “that using military force against al Qaeda is a bad idea” can do so, but I wouldn’t place that presumption on anyone on this site, even those who have entered arguments which have most frustrated me in the last 24.
As you may remember, BooMan and I were recently in the camp that we needed to have an honest discussion about the drone program, and that such a discussion required the Administration to comply more meaningfully with honest Congressional oversight. You’ve been willing to concede that, even while entering opposing arguments to ours.
So, those like BooMan and I who share their concerns are capable of recognizing positive movement and calling it such, even when others are not. We’re not all fully stocked with tinfoil ’round these parts.
Pardon me for hammering this issue so much, but I not to long ago woke up with a gun in my face and being suspected under an Illinois terrorism statute. I was released because the Illinois law is checked in Illinois and nationally by due process outside of the Chicago Police Department.
The whole definition of the global war on terror has been fuzzed from the beginning. I don’t want begrudging concessions, I want a clear statement that the executive branch does not have the unilateral authority to kill people on suspicion. And that someone without the same interests is checking their work.
What got this started is Holder using the same arguments that the Bush administration invented to justify torture, rendition, and indefinite detention and then the assertion in the Nation Defense Authorization Act that the battlefield extended to the United States.
That does place an additional context to your concerns. I’m really sorry you went through that, and I hope the harassment you personally suffered through is heading toward remedy, as I want for all others who have been harassed.
Leaving aside for a moment the fact that the administration is shredding the Constitution, what’s laughable to me is the decision to hand the likes of Rand Paul a perfectly valid wedge issue with which they can splinter our coalition.
Whose genius idea was that?!
Holder’s critics, like most critics of the drone strikes against al Qaeda commanders, are leaning very heavily on willful, feigned ignorance.
Golly, I have no idea what he could possibly mean! Is that a No? Why, I just can’t tell!
Here’s the issue. How do you know who is an al Quaeda commander? How do you know that the intelligence isn’t bogus or compromised so that you wind up killing an ally instead? Or are directed by bogus intelligence against innocent civilian targets?
How do you identify them if the war is not territorially or temporally limited? If there are multiple nationalities involved? If there is no connection with the network formerly headed by Usama bin Laden?
Does not Congress get the oversight responsibility in the Intelligence committees of seeing the network links that justify the targeted killings?
Is the President asserting his authority under the AUMF or under Article II commander-in-chief responsibilities?
Would targeted killings (not just drone strikes) be used extra-judicially in the United States?
Holder has not given direct answers to these questions of law. The US claims it operates in terms of law and not arbitrarily as it suits the government. Holder is accountable to the public. He needs to be candid.
The ignorance is not feigned. The DOJ is fuzzing the legal issues in its statements and some believe that it to give it the flexibility to act arbitrarily.
This creative use of fuzzing is not new. The Bush administration used the fuzzing of whether Guantanamo is under US or international law to avoid scrutiny of both US and international courts. That resulted in having screwed up the evidence so much that the Congress invented military kangaroo courts to prosecute the Guantanamo prisoners who the US decided it couldn’t release.
I only wish those were “the issue,” Tarheel. I only wish we were having a meaningful conversation about procedural safeguards in the use of force against overseas al Qaeda cells.
Sadly, instead of actually dealing with those issues, we’re instead pretending not to know whether Eric Holder thinks that it’s legal for the government to kill grandmothers sitting in cafes in American cities.
Holder has not given direct answers to these questions of law.
Yes, he has. Stop playing dumb. This feigned confusion is not honest, it is not helpful, and and it does not advance the discussion that needs to happen.
The ignorance is not feigned.
God, I hope that’s not true. It’s too depressing to even contemplate the possibility that there really is this much stupid in the American left.
“Yes, he has.”
I hate to depress you further, but I’d love to see your answers to those questions, with cites to Holder’s statements.
As far as I can see, which granted isn’t very far, the question is: would it be illegal for a group of bad actors in the executive branch to determine, without any basis in fact or due process, that a grannie at a kebab shop in Chicago posed a serious threat to the US, and to kill her?
Yes, it would be illegal.
You rule. Thanks.
You have to establish a baseline. An obvious baseline because we have seen so much weaselly bullshit by many administrations over many years. We need something that if violated we can tear them apart for.
We need to have a meaningful conversation about procedural safeguards in the use of force period. Against Americans by Americans (police) against anyone by Americans. This is a building block.
We need to have a meaningful conversation about procedural safeguards in the use of force period.
A-men! We certainly do need to have a meaningful conversation about that.
I’ve been wishing, and trying to create, a meaningful conversation for years on this subject. What I get back is people cheering for “drop a Hellfire on Jane Fonda” and people pretending not to know what “engaged in combat” means.
We need to have a meaningful conversation that is actually about the legal principles and procedural safeguards, and doesn’t just use big words that one might find in such a meaningful conversation to grind one’s ax.
From emptywheel:
Given the sorts of arrests of “terrorists” that have been made in the US, what does “engaged in combat” mean? How do you detect that as an “imminent threat”?
Congratulations. You are now, clearly and currently, more obstinate on this issue than Rand Paul and Ted Cruz. That’s quite an achievement.
I make fun, but do you get what BooMan’s trying to express here? That it becomes important, if you want your POV to be respected in this discussion, to have rational responses to information? Because here’s the thing: your last question has merit. Its merit is lost, however, if the person asking it attaches a sentiment that it hasn’t been made clear to them by the AG if the President believes he can legally kill people in American cafes. You don’t want to answer the question, because you have become persuaded that the questioner will not accept the answer in good faith. It’s not just frustrating; it does damage to the art of crafting good policy through democratic principles.
Me, I have much greater concern that the government’s ability to harass and arrest will be abused than their ability to kill. Call me crazy.
If you are talking about Rand Paul, I get your point. The GOP has cried “Wolf” so often that they have lost all credibility except among their credulous followers.
But Rand Paul won’t be remembered if this policy results in actions that step over the line of legality and prudence. The application of it is only as good as the intelligence. And if that doesn’t concern you, it should. I gave my reason above.
“Given the sorts of arrests of “terrorists” that have been made in the US, what does “engaged in combat” mean?”
Are you serious with this? “What does ‘engaged in combat’ mean?”
You damn well know what “engaged in combat” means as a legal term.
Stop it. Just stop it. This is embarrassing.
I think Tarheel has some experience in this regard.
In what regard? What does any of that have to do with the definition of combat, the use of military force within the US, extrajudicial killings, or any other issue raised here?
Chicago police suck; I think we already knew that. That has even less to do with droning Jane Fonda in a cafe than the drone strikes in Yemen.
Chicago police have checks and balances institutionally. The President is asserting the ability to define what “engage in combat” means on an ad hoc basis without any checks and balances and on that determination and a determination of “imminent threat” conduct a targeted killing.
I am pointing out that “engaged in combat” in terms of the global war on terror has become a very elastic category of militarized law enforcement or for the military. The Chicago Police after all were operating during the NATO protests in coordination with the Department of Homeland Security Fusion Center. And the law under which the raid was conducted was an Illinois anti-terrorism statute. It is not as if the Chicago Police were not under command and control.
I understand why Paul chose Jane Fonda as a hyperbolic example. No doubt Richard Nixon would have loved the authority to use a targeted killing program on US critics. All he would have had to do was assert that she was “engaged in combat” and posed and “imminent threat” and give the order. After all, wasn’t he the one who said, “If the President does it, it’s legal.”
The point over and over is that there are no institutional checks and balances that can prevent mistakes and that “imminent” in the DOJ White Paper because a very elastic category. Both of those add up to a policy of “Trust me”, which is not how the US Constitution operates.
Just stop.
“Engaged in combat” is not a vague, difficult, or arbitrary term. You are inventing a controversy where there is none.
My memory is vague, but I do remember driving in my car to get groceries when I learned on the radio that a bunch of terrorists had been arrested in Chicago. Later I learned that Tarheel was one of them. When you’ve been falsely accused of terrorism, you tend to take a broader view of the the possible ways a drone program designed to kill terrorists abroad might kill someone in the United States who isn’t actually a terrorist.
When you’ve been falsely accused of terrorism, you tend to take a broader view of the the possible ways a drone program designed to kill terrorists abroad might kill someone in the United States who isn’t actually a terrorist.
Why? Have there been a large number (or, you know, one) of people killed in the United States after having been falsely accused of terrorism? How about correctly accused? Or have they been arrested and subject to the ordinary due process found in our criminal justice system?
This argument is an exercise in throwing around the word “terrorism” to scare people, but from the other direction.
Tarheel is talking about a possible future, not the past, no?
But there has to be some connection between the statements he’s criticizing and the “possible” future.
The government has had the authority to use military force against people engaging in combat within the US since the founding.
Answering the question about US persons not engaged in combat with a “No” does nothing to “create a loophole.” I don’t think Tarheel himself would argue that the government is not authorized to do so.
And yet, because Holder was asked about whether the government had the authority to go beyond this, and answered “No,” we’re supposed to take that as some sort of threat that the government is going to go beyond that limit.
“The government” is not the executive unilaterally drawing up a target list of individuals. Congress had big problems with this during the 1970s for all sorts of reasons of past experiences. And the Constitution specifically prescribes the procedure for acts of treason.
There was a reason that the Constitutional Convention adopted that language, rooted in their experience with the British military.
The post-9/11 legislation has been very vague about what “engaged in combat” means. Holder did nothing to clarify that vagueness. That same vagueness appeared in practice in the Bush administration’s rendering of prisoners to Guantanamo, some of whom were not engaged in combat at all and therefore not enemy combatants. But that rationale about Guantanamo still exists and got echoed in the DOJ white paper.
Well, look, I am not associating myself with the totality of Tarheel’s argument.
I was just interjecting to make sure you understood where he’s coming from.
I mean, if you woke up with a rifle in your face and were held without charges, mistreated and robbed, and called a member of terrorist cell, when all you were doing was hanging out with a bunch of Occupy members and protesting NATO, then you might not see it as theoretical that you could be wrongly accused of being a terrorist and “engaging in combat.”
Here’s a contemporary with the arrests. Here’s Fox News: Chicago man charged in plot to attack NATO summit with Molotov cocktail.
Here’s what really happened:
And somehow Tarheel, who had absolutely nothing to do with this guy’s drunken threats, wound up getting called and treated like a terrorist.
So, that’s the first thing. To get to the point where the government drone-blasts innocent people on American soil, the first thing they need to do is suspect innocent people of terroristic intent. The next step is the bigger one, which would be to drone-blast someone you could just as easily arrest.
But Tarheel makes a valid point that you have to guard against the government calling any place inside the country a part of the GWOT battlefield, because once they do that, you have competing laws to determine whether they can drone-blast people domestically.
Where I differ is in the idea that the administration’s answers were really insufficient. I agree with you about that.
Possible future. Yes. There are not sufficient institutional checks and balances to prevent it. That is the issue.
And the drift over the past 12 years in both Republican and Democratic administrations is toward that possible future.
And the drift over the past 66 years in both Republican and Democratic administrations is toward the accumulation of more power in the executive at the expense of the legislative and the judiciary. (Not that the Congress and Supreme Court are any great shakes these days.) But that is the trend. And the possible future if that is not reversed is not the preservation of Americans’ freedoms. (Even as the range of demographics to whom those freedoms are open is expanded.)
And when the Obama Administration tried to give back to the DOJ some of the powers to detain and prosecute terrorist suspects that the Bush Administration and Congress had pushed to the intelligence and military, Congress scuttled Obama’s plans. Holder and his DOJ put together a plan which was sound and provided reassurance of their good faith desire and ability to execute justice fairly while keeping Americans safe. Congress decided to prevent that from happening.
When we consider the current Administration’s actions, it is important to be fair to their whole record, including policies which have been improved (pulling back justifications and programs for torture and black sites, for other examples).
And the Judiciary has been provided many opportunities in recent years to take back some of the powers that the Bush and Obama Administrations have been claiming. In a few cases (Hamdan comes to mind most prominently), judges have held a prominent place for the Judiciary in continuing to decide these questions. In many other cases, judges have failed to find themselves able to restrain the Executive, for a number of reasons.
The cases which worry me most are the ones where the judges have said, in essence, “I don’t believe I’m providing justice by this decision, but I lack the evidence necessary to find for the defendant.” That is Kafka’s world brought to us in whole, and provides Administrations incentive to keep certain classified programs so secret in their scope that the Judiciary is barred from accessing the very evidence it needs to do its job.
In terms of the longer history of collection of increased power by the Executive, well, that hasn’t been a consistent movement in those 66 years, has it? Consider the Supreme Court’s judgement in the Pentagon Papers case, Congress’ actions through the Church Commission, and both branches’ willingness to restrain the President during the Watergate investigation, and we see that Administation powers in the ’70’s were restrained under some extraordinary tests. These are not the only times over those decades when the other branches have successfully defended their powers. We should also consider, for example, the moments where the other branches abused the Executive, most famously in the House’s impeachment of President Clinton.
I concede that, in whole over those 66 years, the Executive has gained more power. I agree with the view that the other branches should take back ground. It is possible to acknowledge that and acknowledge recent positive trends by the Administration and DOJ in their execution of security programs and justice. The Administration needs to keep on moving in a positive direction. But, it has value to recognize that they’re moving.