Only because Rand Paul, Ted Cruz – and now others – have been willing to stand up to the administration and demand transparency on drone strike policy are Americans learning the chilling truth about the executive’s elastic definition of “imminence” in “imminent threat.”
If you’re concerned about the lack of transparency and accountability of the policy of drone strikes in Pakistan, Yemen and Somalia, you have to concede that Senators Rand Paul and Ted Cruz have done us a great service: Cruz, R-Texas, with his questioning of Attorney General Eric Holder in the Senate Judiciary Committee hearing, Paul, R-Kentucky, with his widely reported filibuster on the Senate floor.
Unfortunately, some Democrats don’t want to acknowledge this contribution. That’s a shame.
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It’s a fact of life in Washington that people who are good on some issues that you care about are bad on other ones. You can see this all the time without leaving your own party. Just this past week, Sen. Ron Wyden, D-Oregon, key champion on transparency and accountability of the drone strike policy, badly hurt opponents of war with Iran by becoming an original co-sponsor of the AIPAC/Lindsey Graham “backdoor to war” resolution that tries to “pre-approve” participation in an Israeli attack on Iran, saying that if Israel attacks Iran, the United States should support Israel militarily and diplomatically.
When a political figure is in the opposing party, that almost certainly means that they’re bad on a lot of issues you care about. But if you dismiss them when they’re good on something else, then you’re dismissing all the people who care about that issue, including the people in your own party who care about that issue.
Rand Paul and Ted Cruz showed how challenging the administration’s lack of transparency on targeting Americans with drone strikes inexorably leads to challenging the administration’s lack of transparency on targeting non-Americans with drone strikes.
In the Judiciary Committee’s hearing with Attorney General Eric Holder, Cruz pressed Holder on the question of whether the administration would consider it Constitutional to target Americans with drone strikes on US soil. Holder responded by saying, yes, it would be Constitutional, in an extreme circumstance like Pearl Harbor or the September 11 attack.
Cruz pressed on: Nobody disputes that we would respond to a military attack on US soil, or any physical attack, regardless of whether Americans were involved. The question is: Suppose someone you consider to be a terrorist were sitting in a café in the US, not an imminent threat. Could you drop a bomb on them, like you do in other countries? And that was the question to which Holder finally gave a clear no.
In other words, Holder said: If you are a citizen of the United States, so long as you keep your feet planted on US soil, even if the US government suspects that you are part of Al-Qaeda or an “associated force,” the US government cannot drop a bomb on you so long as you are not currently engaged in combat, or are not on your way to combat. So long as you are in the United States, the word “imminent” in the phrase “imminent threat” means what everyone thinks it means, what law enforcement thinks it means, what international law thinks it means: right now, or in the immediate future, you are threatening violence, so we can take you out.
But, according to the administration, the moment you step outside the United States, then if the US government thinks that you are part of Al-Qaeda or an “associated force,” the US government can drop a bomb on you, even if you’re sitting in a coffee shop, reading a book, with no apparent plans to do anything else. And the reason for that is that the moment you step outside of the United States, the administration’s definition of “imminent” changes from the normal definition: Now you are an “imminent” threat because, as a suspected member of Al-Qaeda or an “associated force,” it’s presumed that you will try to do something to the US at some point in the future, not necessarily the immediate future.
And this is a pretty striking revelation, because ordinarily, as Americans, we think that our rights relative to the US government are attached to us, not forfeit when we travel.
During Paul’s filibuster, Paul and Illinois Senator Dick Durbin had an exchange that exposed the same point:
As the filibuster crept toward its 13th hour, Senate Majority Whip Dick Durbin, D-Illinois, joined to ask Paul whether the US government had the authority to take out the fourth plane on 9/11 before it crashed into the Capitol. “I don’t think this is such a clear and easy situation,” Durbin said.
Paul called it a “red herring.” “We all agree that you can repel an imminent attack,” Paul said. “None of us disagree with that. We are talking about a targeted drone program” against citizens who are “not actively engaged in combat. … I don’t think that standard can be used in the United States.” [my emphasis]
Durbin said he respected Paul’s response. “I stand with the Senator,” Durbin said. “I think it is a legitimate question.” [my emphasis]
You can see why the administration might have been reluctant to state this clearly: Critics who say the drone strike policy violates international law also read American newspapers. When the UN report comes out, it will likely make note of the fact that the administration has acknowledged that its re-definition of the word “imminent” to claim that the drone strike policy doesn’t violate international law – that is, isn’t a policy of extrajudicial killing – not only differs from the customary international law definition but from the administration’s own definition of “imminent” that it applies in the United States.
During the hearing, Holder effectively conceded the point that the Judiciary Committee needs the Justice Department’s memos justifying the drone strikes to do oversight. Holder was asked about the recently released “white paper” justifying the policy. Holder said: you have to read the white paper in conjunction with the underlying Justice Department memos. Thus, Holder himself is saying that the committee needs to have access to the memos to understand the policy:
Sen. Mike Lee, R-Utah: In fact, on page seven of the white paper – the white paper goes so far as to suggest that imminence doesn’t really need to involve anything imminent. Specifically, it says that this condition, that of imminence that – that an operational leader present an imminent threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on US persons and interests will take place in the immediate future.
So I, I have to ask, Mr. Attorney General, sir, what – what does imminence mean if, if it doesn’t have to involve something immediate?
Holder: Yeah, I mean I, I think part of the problem is what we talked about in the previous question, but I think that white paper becomes more clear if it can be read in conjunction with the underlying OLC advice.
The events of the past few days proved again what should have been obvious: Congressional pressure works to force the administration to disclose information that it should disclose, and absence of Congressional pressure doesn’t work. The Senate Intelligence Committee, after waiting more than a year, is finally getting the memos because it threatened to hold up the confirmation of John Brennan to head the CIA unless it got the memos and then showed that it was willing to carry out the threat. The Senate Judiciary Committee doesn’t have the memos because it has not yet exerted enough pressure. Senator Patrick Leahy, D-Vermont, chair of the committee, has threatened to issue a subpoena. But Leahy hasn’t shown yet that he is prepared to carry out the threat.