Hiding behind the details
Rand Paul says he's satisfied with Eric Holder's answer to the question of whether the president can order assassinations on American soil:
“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 attorney general, Eric H. Holder Jr., wrote to Mr. Paul. “The answer to that question is no.”
Well at least we've eliminated one weapon. Maybe Paul should have followed up with another question asking if they can use a Bowie knife to kill an American not engaged in combat on American soil. Or a baseball bat. I happen to think the choice of method really isn't really the point, but I guess that's just me.
Greenwald has been on a speaking tour this week, but his twitter feed shows that he's unpersuaded, as is Emptywheel. And so is law professor Ryan Goodman in the New York Times, who raises a number of excellent points:
Mr. Holder’s letter raises more questions than it answers — and, indeed, more important and more serious questions than the senator posed.
I'm reminded of how both Bush and Obama used the odd phrase "America does not torture." This is a lawyerly choice of words, done for a particular purpose. Bush wanted to say that what he did wasn't torture and Obama wanted to say that Bush's torture regime had ended --- but neither wanted to admit that it had existed because it's a violation of International Law and a war crime, which might have subjected some people in high places to legal sanction. So they used exactly the same phrase, twisting their answers into this odd present tense, and they did it repeatedly.
What, exactly, does the Obama administration mean by “engaged in combat”? The extraordinary secrecy of this White House makes the answer difficult to know. We have some clues, and they are troubling.
If you put together the pieces of publicly available information, it seems that the Obama administration, like the Bush administration before it, has acted with an overly broad definition of what it means to be engaged in combat. Back in 2004, the Pentagon released a list of the types of people it was holding at Guantánamo Bay as “enemy combatants” — a list that included people who were “involved in terrorist financing.”
One could argue that that definition applied solely to prolonged detention, not to targeting for a drone strike. But who’s to say if the administration believes in such a distinction?
American generals in Afghanistan said the laws of war “have been interpreted to allow” American forces to include “drug traffickers with proven links to the insurgency on a kill list,” according to a report released in 2009 by the Senate Foreign Relations Committee, then led by John Kerry, now the secretary of state.
The report went on to say that there were about 50 major traffickers “who contribute funds to the insurgency on the target list.” The Pentagon later said that it was “important to clarify that we are targeting terrorists with links to the drug trade, rather than targeting drug traffickers with links to terrorism.”
That statement, however, was not very clarifying, and did not seem to appease NATO allies who raised serious legal concerns about the American targeting program. The explanation soon gave way to more clues, and this time it was not simply a question of who had been placed on a list.
In a 2010 Fox News interview, under pressure to explain whether the Obama administration was any closer to capturing or killing Osama bin Laden, Mr. Kerry’s predecessor, Hillary Rodham Clinton, said that “we have gotten closer because we have been able to kill a number of their trainers, their operational people, their financiers.” That revelation — killing financiers — appears not to have been noticed very widely.
As I have written, sweeping financiers into the group of people who can be killed in armed conflict stretches the laws of war beyond recognition. But this is not the only stretch the Obama administration seems to have made. The administration still hasn’t disavowed its stance, disclosed last May in a New York Times article, that military-age males killed in a strike zone are counted as combatants absent explicit posthumous evidence proving otherwise.
Mr. Holder’s one-word answer — “no” — is not a step toward the greater transparency that President Obama pledged when he came into office, but has not delivered, in the realm of national security.
It's fair to say that these odd phrasings and very particular choices of words are not an accident and anyone with common sense can tell instantly that by being so precise, they are hiding something.