
Eric Holder sends a follow-up letter to Rand Paul [pdf] - anigbrowl
http://online.wsj.com/public/resources/documents/LetterToSenatorRandPaul03072013.pdf
======
SeanKilleen
Not a fan of Holder's original letter on the topic, and had to give Paul
credit, but from an entertainment standpoint, the terse response and answer
are pretty funny. "You have now asked an additional question" -- yes, a
12-hour long question.

Either way, happy to have a solid "no" on this answer and annoyed that it took
a 12-hour filibuster to bring that about.

\---

One follow-up point now that I've thought about it: a lot of that statement
depends on the definition of "engaged in combat." If I wasn't mistaken, wasn't
part of the problem that the definition of this was so loose?

~~~
samstave
Call me a skeptic, but I see a loophole in that answer:

"...not engaged in combat..."

Define Combat.

Would Christopher Dorner's circumstance been classified as "engaged in
combat"?

I would suspect that, yes it would be. Thus Eric Holder's position would be
that a weaponized drone strike against him would be authorized.

However, in congruence with his earlier statement, the Dorner case could be
considered "extreme" - as such, we need a much more clear definition of both
'extreme' and of 'combat'.

Could anyone opposing any LEO/Fed/gov agent be considered to be "in combat"?

What if they (the civilian) are being shot at, have no weapons but are being
attacked by an LEO (Like the ladies and gentleman in the two trucks that were
shot at by LAPD)?

So, while the terse nature of this response is slightly amusing - it's also
scary.

EDIT: heh - you noticed the same thing I did whilst I was typing this...

~~~
tptacek
The Administration cannot deploy military resources against Christopher Dorner
because he is not a person, nation, or organization involved in the attacks on
9/11.

Once again: we are at war with al Qaeda brand terrorists and personal hygiene
products. It is no doubt our stupidest war ever, but it is an actual war,
unlike the war on drugs, and the authorization the Administration has to drone
strike people comes from that war and nowhere else.

~~~
samstave
The road is being paved. What is to stop local law enforcement units from
having weaponized drones within 5 years?

Honestly, what I beleive will happen is FLIR enabled drones assisting in all
LEO efforts.

Take a look at my friends video he took this weekend.

This is a tri-copter with FPV goggles he uses to fly it. He built one that can
hold several pounds and has a gymbal for holding a full size camera.

<http://vimeo.com/61156472>

Here is the setup:

[http://www.rcgroups.com/forums/showthread.php?t=1718160&...](http://www.rcgroups.com/forums/showthread.php?t=1718160&page=40#post24085992)

Weaponizing is the easy part - paving the multi-year path until its
"authorized" is the tricky part which they are currently attempting.

~~~
tptacek
The road you're talking about is technology. The road Rand Paul is talking
about is endless power grabs from the legislative branch by the executive
branch.

The road you're talking about is real; the road Paul is talking about is
fanciful. The Senate voted to give Bush and his successors this authority
98-0.

Incidentally: as long as we're careful about ensuring that technology doesn't
allow LEOs to gin up probable cause or introduce evidence that should be
excluded, I'm not sure why I should on general principles oppose adoption of
technology by LEOs.

~~~
samstave
The issue is that while it is subtle, the constant adoption of greater and
greater technical capability by the LEOs is that its a slow, but constant
stepping path toward _enabling_ tyranny.

The reason being that 1) a extremely technically enabled LEO system is one
that is completely abstracted from the reality of its citizenry. 2) it creates
an institutionalized dependence and sense of superiority on and due to said
technological capabilities. 3) create a propoensity to rely on the technology
more-so than the human instincts and filters, thus, we see much more of a
"system" which will victimize people more regularly. Any and all murders by
police will continue to be classified as "unfortunate" yet nothing will be
done.

Police are already far too poorly trained to deal with anything remotely
stressful without shooting first.

I am fully opposed to any and all pushing of technology onto an already overly
trigger happy, callous system in lieu of more, actual training.

~~~
tptacek
This is a very good reason not to give the police _armed_ drones, or, for that
matter, new arms of any sort. I'm right with you there. The militarization of
police forces is a real problem.

It is not a very good reason not to give the police better surveillance
technology.

Crime victimizes more people than police forces in the US do. I'm not saying
that means LEOs don't victimize people; they do. I'm not saying that means we
should turn a blind eye to police abuse; we should not. But when we do
risk/reward calculations, we need to keep in mind that the greater ambient
threat is of crime, not police abuse. Sometimes, the police will ask for
things that tip the scale the other direction. But we have to make a case for
how; we can't just assume it.

Keep in mind: I'm one of the people laughing and cheering at the guy in the
video saying "no thanks, no, I won't be pulling into secondary screening" at
the CBP checkpoints; I've given to the ACLU. Surveillance is scary. It's just
not _intrinsically_ bad; it's bad in a context-dependent way.

------
DanielBMarkham
Read an interesting column the other day that pointed out that in Washington
there's plenty of bipartisanship -- when it comes to creating the security
state. Not so much for other things. Paul ended up taking a hit from all sides
on his mini-filibuster. And it was a rather odd assortment of politicians that
supported him.

I'm glad the AG saw fit to answer after six weeks, and it looks like Paul is
happy with the answer -- for now. This type of thing is a hall of mirrors,
though. What defines "combat"? Were the Americans targeted in Africa
participating in combat?

Supporters of Paul will say that he's only following the questions, that the
administration is stonewalling. Supporters of the administration (and the
Republican status quo) will say that such questions do not deserve answers. So
here we are.

Bit of a sidebar: I honestly feel that these libertarian themes are going to
play a big role in politics over the next few years. I feel so strongly I
created a blog yesterday to summarize libertarian-oriented news and commentary
to record how it all plays out <http://freedom-or-safety.com/blog/>

Note: we should also be clear about the larger picture. A senator, who is
charged with overseeing the "architecture" of the government, asked an
executive department official for some clarity on an issue. After six weeks he
received it and is happy with it. There's nothing binding here. He just got an
opinion on how things are currently being interpreted. The president is
perfectly able to re-interpret the law in a different way tomorrow if he
chooses. In fact, one of the reasons for asking the question it to determine
whether additional legislation binding the executive is required.

There's a much longer post here about terms and language and how we got here.
The Congress authorized the president to take any necessary action against
terrorists. Either that authorization has to end, or we need a very fine-
grained examination of just what that language means, perhaps with more
instructions from Congress. In either case, in my mind this is the normal
thing that Congress should be doing.

The question is answered. The issue is not settled, and that's fine.

~~~
cpursley
"these libertarian themes are going to play a big role in politics"

I sure hope you're right.

~~~
DanielBMarkham
Remember I didn't say they were going to _dominate_ politics, just play a big
role.

The reason I say that is because it was clear to me yesterday when Paul took
the floor that millions of people both Democrat and Republican were with him.
It was the establishment that was going bonkers. Partisans on both sides of
the aisle didn't know what to do.

That means there is a place in the center for some kind of pragmatic
libertarian movement to challenge the old guard in both parties. I won't lie
to you -- the odds are extremely long that it amounts to anything. But it's
the best chance I've seen in 20 years or more, and that's worth spending some
energy recording, sharing, and encouraging it.

~~~
anigbrowl
_It was the establishment that was going bonkers._

In what way, by failing to agree with him?

~~~
DanielBMarkham
Linsday Graham: “I do not believe that question deserves an answer.”

John McCain: "...if Mr. Paul wants to be taken seriously he needs to do more
than pull political stunts that fire up impressionable libertarian kids in
their college dorms..."

[http://freedom-or-safety.com/blog/rand-paul-receives-
respons...](http://freedom-or-safety.com/blog/rand-paul-receives-response-
criticism/)

~~~
anigbrowl
2 comments hardly seems like the entire establishment 'going bonkers'. While I
think his question deserves an answer, I agree with McCain that it's nothing
more than a stunt. If Rand Paul were really serious about this, why not
introduce a bill to amend the AUMF, which is what the President such broad
authority to determine who is a combatant and deploy force accordingly?

As a US Senator, Rand Paul is among the most powerful individuals in the
country. He can introduce legislation to add an oversight or reporting
requirement to the AUMF, or to make determinations of enemy combatant status
subject to legislative or judicial review, even posterior review...or any
number of other variations. Of he can craft new legislation definingthe
acceptable scope (if any) of drone deployment within the US by military or
civilian authorities. Either would be more productive and more actionable than
grandstanding demands for answers to questions that the Attorney General has
answered already.

It's a funny sort of libertarian that wants to amend the Constitution to
forbid abortions and prevent some people born in the US from becoming
citizens, instead moving to a regime where citizenship is inherited.

~~~
DanielBMarkham
Sorry. Looks like you wanted an argument. I just thought you were asking for
examples. Have a good one.

~~~
anigbrowl
I wanted you to back up your rhetoric with something substantial.

------
lisper
This is meaningless because of the weasel words "not engaged in combat." The
president can determine that anyone is "engaged in combat."

~~~
tptacek
No, they cannot. Holder testified under oath at the Senate about this;
specific examples were given.

------
naftaliharris
I've long been curious about this: In the Civil War, the United States killed
hundreds of thousands of Confederate soldiers, (without a trial, of course).
Yet the fifth amendment explicitly states that "No person shall be ...deprived
of life, liberty, or property, without due process of law;"

Does anybody know how the Lincoln administration justified the use of deadly
force during the Civil War? Presumably this would be a reasonable precedent to
look at when determining the legality of killing American citizens without a
trial.

~~~
aristus
Lincoln and Grant suspended habeus corpus for this reason. Leaving aside the
preliminaries, once the shooting started the government had an armed
insurrection within their borders.

Article 1, section 9: "The privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion, the public safety
may require it."

Following from that, imagine telling an army that it is under arrest. :)

~~~
tptacek
We didn't suspend habeas during World War 2, and we did kill US citizens in
Europe.

~~~
csense
> we did kill US citizens in Europe

We did? Was it on purpose [1]? Can you provide some references?

[1] I'd certainly believe that it's almost impossible to have a nonzero amount
of friendly fire casualties in any military operation of this size.

~~~
tptacek
A nonzero number of American citizens of Germanic descent left the country to
fight for Germany before the US declared war.

~~~
aristus
I'm pretty sure that travelling to another country and joining an army
currently at war with the US makes you fair game. In fact:
<http://www.law.cornell.edu/uscode/text/8/1481>

~~~
tptacek
It's also the Article III section 3 Constitutional definition of treason. But
we didn't put those people on trial; we defeated them in combat.

~~~
aristus
Sure, if someone commits treason and then surrenders nicely, put them on
trial. But if they are shooting at you, what are your options? The technical
crime of treason being committed by some percentage of people in an opposing
army seems to be a real distant second to the shooting. How do you arrest an
army?

------
forgotAgain
Do you actually have to been engaged in combat or just contemplated it. Yeah,
it's not like anyone has ever been entrapped by the FBI.

------
Kapura
Rand Paul is an idiot. Of course the president doesn't have the authority to
order drone strikes on american citizens on american soil. What a waste of
time and energy. Anybody who supports what Paul did is at best ignorant of
what the government actually does and at worst a fumbling moronic buffoon.

------
ambler0
As many others have pointed out, "engaged in combat" has the potential to be
interpreted in dangerous ways.

I think the drone issue is distracting people from what I feel is the more
important issue: Our government has taken the official position that it can
legally assassinate its citizens. So they can't legally kill me with a
drone... small comfort if they can just assassinate me in some other fashion.

(yes, I know that government agencies have assassinated American citizens [not
to mention non-citizens] in the past, but making it official doctrine is quite
an escalation)

~~~
rza
Yes, the issue of drones is extraneous. A drone is no different than a gun,
the former just has a longer range. It's just fluff around the question of
whether the government can kill unarmed and non-threatening citizens.

~~~
tptacek
... which they cannot.

------
blueprint
So they can kill American citizens engaged in combat? Great. What's combat?

~~~
tptacek
Holder testified about this under oath in response to adversarial questioning
from Senator Cruz and was clear that without an imminent threat that would
endanger America (this was stated several different ways, all under oath) the
US couldn't use lethal force of any sort on a terrorist on American soil. The
example used was of an al Qaeda terrorist sitting at a cafe; a "cafe strike".

Holder said not only would lethal force be inappropriate (he actually started
by saying "with the facts you've provided we wouldn't even be able to arrest
the person"), but that the Constitution would not permit the Administration to
use it.

~~~
LandoCalrissian
Yeah the problem is that the Justice Departments definition of "imminent
threat" is so loose that you could pretty much classify anything as
"imminent".

They are playing really fast and loose with the lexicon they use.

~~~
tptacek
This is why I pointed out that the question was phrased in multiple different
ways, because I realized I was writing on a message board for nerds and that
someone was going to try to litigate the meaning of the words "imminent" and
"threat". If you watch the testimony, it was more specific than that.

~~~
LandoCalrissian
This is from the Memo to congress from the Justice Department:

"The condition 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 U.S. persons and interests will
take place in the immediate future"

~~~
tptacek
That refers to al Qaeda militants overseas. It is exactly the same logic as
the logic that allowed Allied airstrikes against Nazi armor and troop
placements in Europe.

------
csense
For the country's top lawyer, this is awfully ambiguous grammatically.

There are two different possible interpretations of the wording of this
letter:

1\. The President cannot order the use of a weaponized drone to kill an
American, unless that American is engaged in combat on American soil.

2\. The President cannot order the use of a weaponized drone to kill an
American on American soil, unless that American is engaged in combat.

~~~
tptacek
If I understand (1) and (2) correctly I believe the Administration claims the
authority to do both.

------
marshray
"Of course he was 'engaged in combat'...there was a military missile headed
his way! Also, the drone was launched from Guantanamo Bay Cuba and it and the
missile were in the air, not on the soil. Thus, the President didn't 'kill'
anyone on 'American soil'. This person was clearly a terrorist who was engaged
in combat with the American people by trying to prematurely detonate one of
our freedom rockets with his face. Sure, there may be other ways to look at
it, but that depends on what your definition of 'is' is."

