“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic.” So begins the oath congressional and military members take when assuming their positions.
Focus on the last part: domestic enemies; that’s precisely what the Obama administration was referring to when Attorney General Eric Holder asserted in a letter to Senator Rand Paul (R-Ky.) that the U.S. government has the legal authority to kill a U.S. citizen on American soil.
Holder was responding to a question Paul raised about the constitutionality of drone strikes, and whether they could be used against U.S. citizens. “It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States,” Holder wrote.
Seeing a political opportunity, Paul then took to the Senate floor in a classic filibuster to delay the confirmation vote of CIA Director nominee John Brennan by insinuating the administration was making an extrajudicial argument for the unjust killing of American citizens with drones.
Of course Paul was purposefully conflating “U.S. citizens” with Americans who’ve forsaken their own country and are bent on hostile acts against it, i.e., “enemy combatants.” So over-the-top was Paul’s accusation that Senators John McCain (R-Az.) and Lindsey Graham (R-S.C.) immediately and publicly ridiculed Paul.
McCain, a retired naval aviator and former POW, called Paul’s accusation a stretch of the imagination that was “ridiculous.” Graham, a currently-serving lawyer and colonel in the U.S. Air Force Reserves, said he considered Paul’s question “offensive” and that it “didn’t deserve an answer.”
Regardless, Holder answered Paul in another 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.”
In a Wall Street Journal editorial that also mocked Paul, the editorial board rightly explained the facts: “The U.S. government cannot randomly target American citizens on U.S. soil or anywhere else. What it can do under the laws of war is target an ‘enemy combatant’ anywhere at anytime, including on U.S. soil. This includes a U.S. citizen who is also an enemy combatant. The president can designate such a combatant if he belongs to an entity – a government, say, or a terrorist network like Al Qaeda – that has taken up arms against the United States as part of an internationally recognized conflict.”
Paul later criticized McCain and Graham saying, “They think the whole world is a battlefield, including America, and that the laws of war should apply.” It’s Paul’s belief that the Bill of Rights should take precedence and “the laws of war don’t apply to America.”
Really Senator Paul? In one sense Paul is right, there’s no “battlefield” in America like those we’ve seen in Iraq, Afghanistan or even Pakistan. Still, does anyone doubt the 1993 bombing of the World Trade Center and the 2001 attacks on the twin towers and the Pentagon were not acts of war carried out by a terrorist network? Is America not engaged in a “global war on terror”?
Most acts of terrorism in the U.S. are law enforcement matters and due process will apply. But you don’t have to be a Hollywood script writer to imagine a scenario of “extraordinary circumstances” developing as mentioned by Attorney General Holder.
Although the likelihood is infinitely remote, I think most Americans would want their president to act. John Walker Lindh, the “American Taliban,” who was captured during the 2001 invasion of Afghanistan; U.S. Army Major Nidal Malik Hasan who murdered 13 of his fellow Soldiers and wounded 29 others during the 2009 Fort Hood shooting; and Anwar al-Awlaki, the U.S. born cleric and regional Al Qaeda commander, who was killed in a drone strike while in Yemen in 2011, demonstrated that there are Americans who turn on their country and citizens.
The rise of drone technology has raised many important questions that need to be addressed. However, the questions asked by Rand Paul and his supporters are not new ones driven by the emergence of drones.
A 1942 Supreme Court ruling considering the Hague Convention and the laws of war gives the U.S. the legal authority to classify hostile belligerents as “enemy combatants.” In Paul’s hypothetical scenario a variety of previously existing weapons, including a simple gun, could be used to legally kill an American citizen who had turned on his country and is bent on hostilities so extraordinary that no other reasonable alternative remains.
As a civil libertarian, the questions Paul should be asking concern the coming ubiquity of drones as law enforcement, government agencies, businesses and even private citizens will soon be operating an array of video-equipped drones. Imagine all the legitimate constitutional concerns this will raise with all these “spies in the skies” being capable of flying over your backyard.
Ken Lynn is a retired USAF colonel and an adjunct online instructor with the USAF Air University.