In response to Rand Paul’s filibuster of John Brennan’s nomination as CIA director last week – where the Senator pressed the issue of drone strikes and Presidential assassination powers – Attorney General Eric Holder issued a letter in response. The letter reads as follows:
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.
This was apparently enough for Senator Paul to declare “victory” on the drone issue. There are many issues with the phrasing of this question, but I’d like to focus on the “engaged in combat” part. As Law Professor Kevin Heller points out, Holder actually deleted a word from Paul’s original question when giving his response. The word? “Actively”. Heller writes:
Why did Holder delete one word from Paul’s question, changing “not actively engaged in combat” to “not engaged in combat”? Does that indicate that the President can kill an American inside the US whose activities qualify as “engaging in combat” even if they would not qualify as “actively engaging in combat”? What is the difference? What does the US understand by “actively”?
As we all know, it’s all about wordplay when it comes to lawyer-speak, and even more so when we’re talking about government lawyer-speak. Once the word “actively” is removed, the definition suddenly becomes a lot broader. If someone is “actively engaged in combat”, we would think they are actually in the process of an attack of some sort i.e. walking up to a building with a bomb, shooting up a mall, etc. Of course, agents of law enforcement have always had the power to stop a violent act that is already in progress, so that would really be nothing new or extraordinary. But what happens when we take “actively” out of the question?
We have already seen what qualifies as “engaged in combat” for the current Administration when it comes to its drone strike policies overseas. The murder of Anwar Al-Awlaki , an American citizen never formally charged or indicted with any crime whatsoever, seems to have set the standard. Awlaki was an outspoken critic of U.S. foreign policy and an alleged “Al Qaeda leader”. Let’s set aside the fact that the term “Al Qaeda” has become as vague as “engaged in combat”.
What was Anwar Al-Awlaki doing at the time of his death by droning? Well, he was on his way out of a cafe after leaving breakfast. This apparently qualifies as being “engaged in combat.”
Was Al-Awlaki really a “terrorist” or “Al Qaeda” or “planning to commit attacks against U.S. interests”? Maybe he was. But we will never know, since he never had any sort of trial nor a chance to defend himself. And just to make sure terrorism isn’t genetic, Al-Awlaki’s 16 year old son was also killed by a drone strike two weeks later while out to dinner with friends.
Leaving a cafe after breakfast. Out to dinner with friends. These are activities considered sufficient to deem someone “engaged in combat” and worthy of immediate death without any legal proceeding whatsoever. Whether or not Al-Awlaki or his son were guilty of anything is a different matter; the fact that they were considered to be “engaged in combat” at the time of their deaths, and that the Administration will apply this same loose definition in the homeland, should be troubling to everyone.
Maybe you’ve gone to an anti-war protest, which the Pentagon now considers “low-level terrorism.” Or maybe your snoopy neighbor saw a Gadsden Flag in your garage and heard you say “something about a gun” and decides to call the FBI? Or perhaps you’re just a lowly libertarian writer, that can’t find a damn thing the government does that he can’t write an article criticizing.
Are you “engaged in combat”?
Perhaps after that anti-war protest you decide to go out to a nice dinner with some friends to plan the next protest? Or maybe your leaving that garage with the Gadsden Flag to go hit the shooting range. Or maybe after a morning of libertarian ranting on the interwebs you decide to go out to happy hour and let off some steam through a few stiff whiskeys?
Are you “engaged in combat”?
Or maybe you just read an article questioning the concept of being “engaged in combat.”
Are YOU “engaged in combat?”