As I’ve written before, it’s becoming increasingly difficult to carry on a rational discussion about the use of lethal force against enemy combatants born in the U.S., as well as the use of drones as a military weapon. To backtrack by way of re-emphasizing my view: the president is on shaky ground when it comes to these related issues, given the endless nature of the war on terrorism and the war powers provided by the post-9/11 Authorization for Use of Military Force. The AUMF should be repealed, the president’s war powers rescinded and the use of drones regulated and defined, otherwise we’re allowing the president to retain war powers in perpetuity, making them ostensibly permanent.
But however much I disagree with the policy and the potential abuse of the technology, I can easily understand the administration’s position. Congress granted it the wartime authority, both in terms of war powers and in terms of funding for drone technology. Under the current status of the executive branch (which I believe ought to be repealed) the White House, the CIA and the Pentagon has the power to fight the enemy as they see it, as has every administration that’s operated under congressionally approved war powers.
Got it? I’m opposed the administration retaining its war powers. Against it.
Okay with that out of the way, you might’ve read yesterday about the memo Eric Holder wrote to Rand Paul in response to a letter the senator wrote to John Brennan inquiring whether the administration could use drones to kill American citizens on American soil. It was difficult to miss, with headlines blazoned everywhere, from The Huffington Post (“Eric Holder: Drone Strike To Kill U.S. Citizen On American Soil Legal, Hypothetically”) to CNN (“Holder does not rule out drone strike scenario in U.S.”) to Mediaite (“Obama Administration: Yes, The President Can Drone Strike Americans On U.S. Soil”) — even Glenn Beck’s The Blaze carried the story (“Revealed: Holder Says President Could Authorize Military Drone Strikes Inside U.S. in Emergency”). But, not shockingly, the headlines were mostly misleading.
However, if we dig beyond the headlines and read the actual letter Holder wrote, we’d realize that Holder absolutely did not write what those headlines would lead us to believe.
Nearly half of the one-page letter discussed how it’s not the administration’s policy to use drones on American soil. In fact, Holder says the administration has no intention of ever doing so. Though if you read the headlines and ledes in each of the above items, you’d think the White House was launching drones off the White House lawn and deploying them to your back yard. Holder continued:
As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.
This is an explicit rejection of drone strikes against citizens inside the borders of the United States in lieu of a fairly straightforward embrace of traditional law enforcement mechanisms. And it’s not a surprise. Since the outset, the administration has attempted to migrate the anti-terrorism process into line with something more closely resembling a traditional legal and judicial process. If you recall, the administration attempted to close Guantanamo and move its detainees to maximum security prisons on the mainland, but nearly every member of Congress, including very liberal members by the way, blocked funding for the move while simultaneously screaming the familiar “not in my back yard” refrain. Furthermore, Holder attempted to bring suspected terrorists to trial in American courts — another move that was almost universally rejected.
In the third paragraph of his memo, Holder responded to Rand Paul’s “hypothetical” scenario with an equally hypothetical scenario involving an impending Pearl Harbor or 9/11 attack. But the paragraph contains no mentions of drones. None. Instead, Holder wrote that the president has the constitutional power to “authorize the military to use lethal force” against the attackers. Granted, it’s conceivable Holder was implying the use of drones, but he didn’t explicitly write about the use of drones. Thus, yesterday’s array of headlines were almost entirely inaccurate — jumping to the conclusion that Holder believes the president reserves the right to use drones against American citizens on our soil.
Now, let’s look at a situation like 9/11 or Pearl Harbor. If an airplane has been hijacked and has turned to attack a civilian target like, say, the Empire State Building or The New York Times building (given our current police-state airport security, the odds are significantly slimmer than they were 12 years ago) does the president have the authority to use a military aircraft — or even a drone — to shoot down the plane? As big a conundrum as this presents, you bet he does. Likewise with a Pearl Harbor style attack of course he has the authority — even moreso given the presence of foreign attackers. Or what if a Secret Service agent or an armed military escort spots a man in a window overlooking the presidential motorcade and the man is aiming a rifle at the president? Naturally the Secret Service agent is within the boundaries of the law to shoot that man in the head. These are the kinds of situations the Holder letter described, and the president has always held these powers long before 9/11 and long before Barack Obama.
Yet it’s much easier, more dramatic and there’s more potential for web traffic to hyper-jump to the conclusion that the attorney general put into writing that the president can wantonly deploy drones to patrol our skies with the authority to kill you if you’re somehow suspected of being a threat to national security. He did nothing of the sort.
Sure, I agree that there’s no harm in having an ongoing conversation about presidential powers and military authority. Such an endeavor requires perpetual diligence from both citizens and the press. But there’s currently so much hysteria circulating around the topic of drones it’s nearly impossible to see beyond the creepy, sci-fi notion of them. Historical precedent and heretofore commonly acknowledged presidential powers are forgotten, and too many people are thusly shocked whenever those powers are brought up in a 2013 context. Yes, throughout American history, the military and law enforcement has reserved the right to use lethal force to thwart crimes inside the United States. But when the word “drones” gets shoehorned into the context, everyone flips out and the truth gets lost. That’s most certainly the case with the Holder letter.
Again, I think Congress needs to take a serious look at regulating drone technology so its risk-free usage isn’t abused, potentially leading to a threat against privacy and civil liberties. But freaking out about a policy and statements that simply don’t exist is the best way to undermine that effort.