The debate over whether the President can use an armed unmanned aerial vehicle (UAV), commonly called a drone, to assassinate a U.S. citizen on U.S. soil is over. Or so it seems.
U.S. Attorney General Eric Holder sent a letter to Senator Rand Paul (R-Ky.) on Thursday briefly explaining that much – and White House Press Secretary Jay Carney stood behind Holder’s comments.
“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?”” Holder wrote citing the Kentucky senator’s own words. “The answer to that question is no.”
And that’s all he wrote — literally.
But during the debate Wednesday, when Paul filibustered the nomination of John Brennan, a democrat in the U.S. Senate put himself in the position of virtually defending a Bush-era counterterrorism law.
Citing the U.S. Department of Justice’s recent white paper explaining the legality of using lethal force on an American citizen in al-Qaida or an “associated force” overseas if he poses an immediate threat to the United States, Sen. Richard Durbin (D-Ill.) invoked the 2001 Authorization for Use of Military Force, also referred to as the AUMF.
[pullquote_right]Durbin’s invocation of the AUMF, a joint resolution passed three days after the September 11, 2001 attacks by the U.S. Congress, lengthened the debate on whether the Obama administration could legally use drones strikes on U.S. citizens on U.S. soil, during one of the longest filibusters in recent U.S. history led by Paul that ended early Thursday morning[/pullquote_right].
“But I would say that the white paper that we’ve been given relative to this U.S. citizen overseas, has some fairly narrow circumstances in terms of the use of force,” Durbin said. “When it comes to the use of force in the United States, I believe that the circumstances should be just as narrow. If not, more.”
Durbin noted that the Justice Department argued that lethal force against a U.S. citizen who happened to be a senior member of al-Qaeda or an “associated force” of al-Qaeda is warranted on three conditions: that the person “poses an imminent threat of violent attack against the United States”; that lethal force could be used if capture was not feasible; and that the use of force complies with law of war principles.
Paul responded by pointing out that the Justice paper reasoned that the attack has to be “imminent” but reminded Durbin the DOJ says that does not mean it needs to be immediate.
“You’re also implying that you could kill a citizen in a non-combat situation” Paul said. “Not in an active battlefield. I don’t accept that standard in the United States. Its another debate whether we accept the standard overseas,” he continued.
In his opening remarks, Paul noted that the Fifth amendment – which says that no person should be deprived of life without due process of law – is a precious American tradition that should not be given up so easily.
Later, he added that to “kill someone in a non-combat situation in America is unacceptable under any circumstances.”
Paul began the filibuster on Wednesday to block then-CIA director nominee John Brennan. He said the filibuster was not about CIA nominee John Brennan but “constitutional principle.”
Brennan was confirmed as CIA Director Thursday in the Senate in an 63-34 vote. Paul voted no on Brennan.
Expansion of the AUMF
According to a news report from the Washington Post, some Obama administration officials are noticing that they would be stretching their legal authority to keep up with new terrorist threats in Africa — threats that are not responsible for the 9/11 attacks and not al-Qaida but ultimately, in the administration’s view, still pose various threats to the United States.
Under current law, any President is authorized to “use all necessary and appropriate force” to take down those responsible for the attacks on 9/11. However, with a later expansion, that law’s authority is limited to those in al-Qaida and “associated forces.”
Now, the Washington Post reports, some officials are seeking to expand the Bush-era counterterrorism law to include “associates of associates” to combat the new threats in Africa.
A senior Obama official was quoted as saying: “The farther we get away from 9/11 and what this legislation was initially focused upon…we can see from both a theoretical but also a practical standpoint that groups that have arisen or morphed become more difficult to fit in.”
According to the Post, the limits of the AUMD were outlined by an official no longer serving as general counsel at the Department of Defense.
“An ‘associated force’ is not any terrorist group in the world that merely embraces the al-Qaida ideology,” the Post quotes Jeh Johnson, the former general counsel, as saying.
“Instead, it has to be both “an organized, armed group that has entered the fight alongside al-Qaida” and a “co-belligerent with al-Qaida in hostilities against the United States or its coalition partners.”
Leading up to the filibuster
The Kentucky senator sent numerous letters in January and February to Brennan with questions surrounding the authorization of the use of force against U.S. citizens in the United States.
Paul’s third letter on February 20, asking for his clarification on the question whether he thought the President had the power “to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial?” was answered by Brennan and Holder before the filibuster.
Brennan said that he could state unequivocally that the CIA “does not conduct lethal operations” within the United States. “[N]or does it have any authority to do so,” he wrote to Paul in a March 5, 2013 letter. He also said that if he were nominated (which he was) he would have no power to authorize such an attack on an American citizen.
Holder wrote that “the U.S. government has not carried out drone strikes in the United States and has no intention of doing so,” adding that the administration rejects military force when terrorist threats can be put down by law enforcement.
He continued: “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.”
The UAV policy, which began in the George W. Bush era and continued under President Obama just three days into his presidency, is estimated to have killed between 2,534 and 3,573 people in Pakistan alone from 2004-2013, according to statistics from the Bureau of Investigative Journalism. The program has been taking out al-Qaida operatives but it has also killed children and teenagers, like Abdulrahman Anwar al-Awlaki, a 16-year-old U.S. citizen at the time of his death.
The “signature strikes” where no specific individual is targeted and drone operators rely upon suspicious behavior to target invididuals while not knowing their actual identities possibly account for most of those strikes, if not many of them, according to anonymously sourced media reports.
The first drone strikes to occur in Obama’s first term reportedly killed at least 12 civilians. Three civilians lost their lives in a drone strike in May 2012.
President Obama’s 300th drone strike in Pakistan happened on December 1, 2012, according to the Bureau of Investigative Journalism who has been keeping a tally of the strikes.
CIA drones strikes have also been occurring at a much faster pace (six times faster) under President Obama than under President George W. Bush. In fact, more CIA drone strikes have occurred in the first year of Obama’s first term than all of the years in George W. Bush’s two terms combined.