The unfortunate confirmation of John Brennan to head the CIA was held up by Senator Rand Paul's filibuster in order to get a straightforward answer to the following question:
Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?During the Justice Department's oversight hearing before the Senate Judiciary Committee, Holder engaged in a lot of clunky tap dancing.
Yesterday, Holder finally gave a clear response:
The answer to that question is no.This is reassuring on the surface, but unfortunately the framing of the question leaves a lot still unanswered.
Shortly before the filibuster, Holder was asked a more nuanced question:
if using drones to kill as U.S. citizen on U.S. soil, who was suspected of being involved in terrorism but was not an immediate threat, would be legal.This would have been the better make-or-break question because of the slick and dangerous way the government has defined expansively "engaged in combat." The case law most on point derives from "enemy combatant" jurisprudence. Bush defined the phrase "enemy combatant" to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government in the war on terror.
Although would-be dronees would not be in custody, their rights (or lack thereof) would be more extreme than for current terror detainees: death with no due process whatsoever. The government brags that at least 50 home-grown terror plots have been foiled since 9/11. Under the new definition embraced by Holder, here are some of the people who could have been droned: everyone on the flight with "shoe bomber" Richard Reid, once the plane entered American air space; "dirty bomber" Jose Padilla, the "Lackawanna Six," the 11 Virginia "Paintball" network, and those who proved to be "mistakes," like Brandon Mayfield. I'm trying to picture drones dropping bombs or Hellfire missiles in Chicago, New York, Virginia.
Bush had defined as "enemy combatants" members of al Qaeda or the Taliban engaging in combat, or providing support for fighting forces engaged in combat, directly against the United States. Although Obama supposedly abandoned this definition, as I blogged about yesterday, AUMF-creep (using the Authorization for Use of Military Force to justify all things "counterterrorism") is being stretched to go after new al-Qaeda offshoots and "associates of associates" who may not be affiliated with al-Qaeda at all.
Additionally, individuals need not engage in combat per se to be qualified as an enemy combatant. "Providing support" is dangerously unclear, especially under the"material support" statute, because it includes almost any kind of support for groups designated as "terrorist", including humanitarian aid, training, expert advice, "services" in almost any form, and political advocacy.
For example, noncombat “support” has been defined broadly to include individuals who have assisted al Qaeda outside of any armed conflict (e.g., being a courier outside of Afghanistan), or who appear to have been given support (financial or logistical) by the Taliban or al Qaeda (e.g., a stay at a guest house), even though there is no public evidence of them having provided support or undertaken any overt act in support of either group.
You may ask who the heck would stay at an al Qaeda guest house? The answer is people like Pulitzer Prize-winning journalist Chris Hedges (full disclosure: I am an amicus in his lawsuit against Obama over the National Defense Authorization Act's indefinite detention provision.)
These are just a few ways in which the "engaged in combat" on American soil will be stretched to its most extreme outer limits, which makes people ranging from journalists to academics to activists to whistleblowers drone-eligible.