Last week, Sen. Rand Paul (R-KT) staged a 13-hour filibuster to try to extract from the Obama administration an answer to a very simple question: Under what circumstances does the president have the power to kill Americans on US soil without any judicial process?
The answer to this question is not obvious. Even in a purely law-enforcement context, sometimes an active criminal needs to be shot on sight. But, at the other extreme, no one would suggest that the president may assassinate Americans for political differences. Clearly the power should exist but is severely limited.
But what exactly are those limitations? The problem is that the administration won’t say. Paul succeeded in getting the administration to admit that its power to kill Americans is not unlimited:
Dear Senator Paul:
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 Americans not engaged in combat on U.S. soil?” The answer to that question is no.
Sincerely,
Eric H. Holder, Jr.
Yes, that’s the entire letter. (ASIDE: Either due to a strange oversight or a fit of pique, the White House released the letter to the media but never actually sent it to Paul.) It’s good that the administration admits to some limits, but this tells us virtually nothing about where they see those limits.
On September 11, 2001, while the Pentagon was still burning, the Justice Department was already at work drafting legal rules that would govern the War on Terror. Some of those rules came under fire, of course, but the Bush administration put them out forthrightly and abided by them. That’s called respect for the rule of law.
Later, when the Bush administration’s critics (most of them hypocritically, but some in good faith) attacked those rules, they had specific legal opinions to dispute.
In contrast, the Obama administration never began working seriously on drafting rules for drone warfare until they began to fear they might lose the 2012 election. Once they won the election, the effort apparently evaporated.
Barack Obama’s attitude toward all this is clarified by a revealing exchange with Sen. Jay Rockefeller (D-WV):
Sen. Jay Rockefeller (D-W.Va.) confronted the president over the administration’s refusal for two years to show congressional intelligence committees Justice Department Office of Legal Counsel memos justifying the use of lethal force against American terror suspects abroad. . .
In response to Rockefeller’s critique, Obama said he’s not involved in drafting such memos, the senators told POLITICO. He also tried to assure his former colleagues that his administration is more open to oversight than that of President George W. Bush, whom many Democratic senators attacked for secrecy and for expanding executive power in the national security realm.
“This is not Dick Cheney we’re talking about here,” he said.
(Via the Corner.)
Instead of offering a legal justification (which the administration refuses to give), Obama explains that he (unlike Dick Cheney) is a good guy. To paraphrase: We don’t need legal strictures when the right person is making the decisions. More tersely: I don’t need legal justification; I’m Obama.
That’s called disrespect for the rule of law.
This matter is too important to allow the Obama administration to make it up as they go along. If the administration will write and publicize rules governing domestic drone strikes, we can debate those rules. But if they refuse to do so, Congress needs to do it.
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