By Glenn Greenwald
Holder’s letter begs the question: what do you mean when you accuse someone of being “engaged in combat”? And what are the exact limits of your power to target US citizens for execution without due process? That these questions even need to be asked underscores how urgently needed Paul’s filibuster was, and how much more serious push-back is still merited.
Source: The Guardian
Commencing immediately upon the 9/11 attack, the US government under two successive administrations has spent 12 straight years inventing and implementing new theories of government power in the name of Terrorism. Literally every year since 9/11 has ushered in increased authorities of exactly the type Americans are inculcated to believe only exist in those Other, Non-Free societies: ubiquitous surveillance, impenetrable secrecy, and the power to imprison and even kill without charges or due process. Even as the 9/11 attack recedes into the distant past, the US government still finds ways continuously to increase its powers in the name of Terrorism while virtually never relinquishing any of the power it acquires. So inexorable has this process been that the Obama administration has already exercised the power to target even its own citizens for execution far from any battlefield, and the process has now arrived at its inevitable destination: does this due-process-free execution power extend to US soil as well?
All of this has taken place with very little public backlash: especially over the last four years. Worse, it has prompted almost no institutional resistance from the structures designed to check executive abuses: courts, the media, and Congress. Last week’s 13-hour filibuster of John Brennan’s confirmation as CIA director by GOP Sen. Rand Paul was one of the first — and, from the perspective of media attention, easily among the most effective — Congressional efforts to dramatize and oppose just how radical these Terrorism-justified powers have become. For the first time since the 9/11 attack, even lowly cable news shows were forced — by the Paul filibuster — to extensively discuss the government’s extremist theories of power and to debate the need for checks and limits.
All of this put Democrats — who spent eight years flamboyantly pretending to be champions of due process and opponents of mass secrecy and executive power abuses — in a very uncomfortable position. The politician who took such a unique stand in defense of these principles was not merely a Republican but a leading member of its dreaded Tea Party wing, while the actor most responsible for the extremist theories of power being protested was their own beloved leader and his political party.
Some Democrats, to their credit, publicly supported Paul, including Sen. Ron Wyden, who went to the Senate floor to assist the filibuster. Sens. Jeff Merkley, Pat Leahy and (independent) Bernie Sanders all voted against Brennan’s confirmation, citing many of the same concerns raised by Paul. Some prominent progressive commentators praised Paul’s filibuster as well: on CNN, Van Jones — while vowing that “I love this president” — said “Sen. Rand Paul was a hero for civil liberties” and that “liberals and progressives should be ashamed.”
But most Democratic Senators ran away as fast as possible from having anything to do with the debate: see here for the pitifully hilarious excuses they offered for not supporting the filibuster while claiming to support Paul’s general cause. All of those Democratic Senators other than Merkley and Leahy (and Sanders) voted to confirm the torture-advocating, secrecy-loving, drone-embracing Brennan as CIA chief.
Meanwhile, a large bulk of the Democratic and liberal commentariat — led, as usual, by the highly-paid DNC spokesmen called “MSNBC hosts” and echoed, as usual, by various liberal blogs, which still amusingly fancy themselves as edgy and insurgent checks on political power rather than faithful servants to it — degraded all of the weighty issues raised by this episode by processing it through their stunted, trivial prism of partisan loyalty. They thus dutifully devoted themselves to reading from the only script they know: Democrats Good, GOP Bad.
To accomplish that, most avoided full-throated defenses of drones and the power of the president to secretly order US citizens executed without due process or transparency. They prefer to ignore the fact that the politician they most deeply admire is a devoted defender of those policies. After stumbling around for a few days in search of a tactic to convert this episode into an attack on the GOP and distract from Obama’s extremism, they collectively settled on personalizing the conflict by focusing on Rand Paul’s flaws as a person and a politician and, in particular, mocking his concerns as “paranoia” (that attack was echoed, among others, by the war-cheering Washington Post editorial page).
Just as conservatives feared non-existent black helicopters in the 1990s, they chortled, now conservatives are hiding under their bed thinking that Obama will kill their neighbors or themselves with drones while they relax at a barbeque in their backyard. In this they echoed Bush followers, who constantly mocked objections to Bush/Cheney executive power abuses as nothing but paranoia. Besides, they claim, Attorney General Eric Holder has now made crystal clear that Obama lacks the authority to target US citizens on US soil for execution by drone, so all of Paul’s concerns are nothing more than wild conspiracies.
The reality is that Paul was doing nothing more than voicing concerns that have long been voiced by leading civil liberties groups such as the ACLU. Indeed, the ACLU lavishly praised Paul, saying that “as a result of Sen. Paul’s historic filibuster, civil liberties got two wins.” In particular, said the ACLU, “Americans learned about the breathtakingly broad claims of executive authority undergirding the Obama administration’s vast killing program.”
But almost without exception, progressives who defend Obama’s Terrorism policies steadfastly ignore the fact that they are embracing policies that are vehemently denounced by the ACLU. That’s because they like to tell themselves that only Big, Bad Republicans attack the ACLU — such as when George H.W. Bush tried to marginalize Michael Dukakis in 1988 by linking him to that group — so they ignore the ACLU and instead pretend that only right-wing figures like Rand Paul are concerned about these matters. It’s remarkable indeed how frequently, in the Age of Obama, standard partisan Democrats embrace exactly the policies identified by the ACLU as the most menacing. Such Obama-defending progressives also willfully ignore just how much they now sound like Sarah Palin, Karl Rove, and George Bush when ridiculing concerns about due process for accused Terrorists:
Bush in his 2004 Convention speech mocking John Kerry: “After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers”;
Rove in 2005 mocking liberals: “Liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments”;
Palin in her 2008 RNC Convention speech mocking Obama: “Al Qaida terrorists still plot to inflict catastrophic harm on America, and he’s worried that someone won’t read them their rights.”
Find any defender of Obama’s claimed power to assassinate accused Terrorists without due process and that is exactly what you will hear. That’s why it is no surprise that the conservatives whom Democrats claim most to loathe – from Dick Cheney to John Yoo to Lindsey Graham to Peter King — have been so outspoken in their defense of Obama’s actions in this area (and so critical of Paul): because the premises needed to justify Obama’s policies are the very ones they so controversially pioneered.
In sum, virtually all of the claims made by these progressive commentators in opposition to Paul’s filibuster are false. Moreover, last week’s Senate drama, and the reaction to it by various factions, reveals several critical points about how US militarism and the secrecy that enables it are sustained. I was traveling last week on a speaking tour and thus watched all of it unfold without writing about it, so I want to highlight three key points from all of this, centered around myths propagated by Democrats to demean Paul’s filibuster and the concerns raised by it:
(1) Progressives and their “empathy gap”The US government’s continuous killing, due-process-free imprisonment, and other rights abuses under the War on Terror banner has affected one group far more than any other: Muslims and, increasingly, American Muslims. Politically, this has been the key fact enabling this to endure. Put simply, if you’re not Muslim, it’s very easy to dismiss, minimize or mock these issues because you can easily tell yourself that they don’t affect you or your family and therefore there is no reason to care. And since the vast, vast majority of Democratic politicians and progressive media commentators are not Muslim, one continuously sees this mentality shaping reaction to these issues.
Yesterday, the Nigerian-American writer Teju Cole, in an interview with Mother Jones, said the key fact about US drone killings is that what “we’re facing here is an empathy gap.” He added:
“Killing a bunch of people in Sudan and Yemen and Pakistan, it’s like, ‘Who cares — we don’t know them.’ But the current discussion is framed as ‘When can the President kill an American citizen?’ Now in my mind, killing a non-American citizen without due process is just as criminal as killing an American citizen without due process — but whatever gets us to the table to discuss this thing, we’re going to take it.”
Writing in Salon, the South-Asian-American philosophy professor Falguni Sheth blasted Democrats and progressives for leaving it to Rand Paul to protest “the White House’s radical expansion of executive power.” She noted: “rather than challenge a Democratic administration in defense of constitutional principles that all citizens should insist be guaranteed, Democrats embraced party tribalism.” She argues in particular that as Democrats attack Paul on the grounds of his support for racist policies, they support or acquiesce to all of these War on Terror policies that have an obvious racial — and racist — component, in light of the very specific types of individuals who are imprisoned, and whose children are killed by drones, and whose rights are systematically abridged.
Some progressives are unintentionally candid about their self-interest leading them to dismiss these issues on the ground that it doesn’t affect people like themselves. “I can think of lots of things that might frighten me, but having a drone attack me in my bed tonight is not one of them,” declared one white progressive at a large liberal blog in the course of attacking Paul’s filibuster. Of course that’s not a concern of hers: she’s not in the groups who are so targeted, so therefore the issues are irrelevant to her. Other writers at large progressive blogs have similarly admitted that they care little about “civil liberties and a less bellicose foreign policy” because they instead are “primarily interested in the well-being of the American middle-class”: i.e., themselves. And, of course, the same is true of all the MSNBC hosts mocking Paul as paranoid: they are not the kind of people affected by the kinds of concerns they aggressively deride in order to defend their leader.
When you combine what Teju Cole describes as this selfish “empathy gap” among progressives with the authoritarian strain in American liberalism that worships political power and reveres political institutions (especially when their party controls them), it’s unsurprising that they are so callous and dismissive of these issues (I’m not talking about those who pay little attention to these issues — there are lots of significant issues and one can only pay attention to a finite number — but rather those who affirmatively dismiss their significance or rationalize these policies). As Amy Goodman wrote in the Guardian: “Senator Paul’s outrage with the president’s claimed right to kill US citizens is entirely appropriate. That there is not more outrage at the thousands killed around the globe is shameful … and dangerous.”
For a political faction that loves to depict itself as the champions of “empathy,” and which reflexively accuses others of having their political beliefs shaped by self-interest, this is an ironic fact indeed. It’s also the central dynamic driving the politics of these issues: the US government and media collaborate to keep the victims of these abuses largely invisible, so we rarely have to confront them, and on those rare occasions when we do, we can easily tell ourselves (false though the assurance is) that these abuses do not affect us and our families and it’s therefore only “paranoia” that can explain why someone might care so much about them.
(2) Whether domestic assassinations are imminent is irrelevant to the debateThe primary means of mocking Paul’s concerns was to deride the notion that Obama is about to unleash drone attacks and death squads on US soil aimed at Americans. But nobody, including Paul, suggested that was the case. To focus on that attack is an absurd strawman, a deliberate distraction from the real issues, a total irrelevancy. That’s true for two primary reasons.
First, the reason this question matters so much — can the President target US citizens for assassination without due process on US soil? –– is because it demonstrates just how radical the Obama administration’s theories of executive power are. Once you embrace the premises of everything they do in this area — we are a Nation at War; the entire globe is the battlefield; the president is vested with the unchecked power to use force against anyone he accuses of involvement with Terrorism — then there is no cogent, coherent way to say that the president lacks the power to assassinate even US citizens on US soil. That conclusion is the necessary, logical outcome of the premises that have been embraced. That’s why it is so vital to ask that.
To see how true that is, consider the fact that a US president — with very little backlash — has already asserted this very theory on US soil. In 2002, the US arrested a US citizen (Jose Padilla) on US soil (at the O’Hare International Airport in Chicago), and then imprisoned him for the next three-and-a-half years in a military brig without charges of any kind. The theory was that the president has the power to declare anyone (including a US citizen) to be an “enemy combatant” and then punish him as such no matter where he is found (including US soil), even if they are not engaged in any violence at the time they are targeted (as was true for Padilla, who was simply walking unarmed through the airport). Once you accept this framework — that this is a War; the Globe is the Battlefield; and the Commander-in-Chief is the Decider — then the President can treat even US citizens on US soil (part of the battlefield) as “enemy combatants,” and do anything he wants to them as such: imprison them without charges or order them killed.
Far from being “paranoid”, this theory has already been asserted on US soil during the Bush presidency. It has been applied to US citizens by the Obama administration. It does not require “paranoia” to raise concerns about the inevitable logical outcome of these theories. Instead, it takes blind authoritarian faith in political leaders to believe that such a suggestion is so offensive and outlandish that merely to raise it is crazy. Once you embrace the US government’s War on Terror framework, then there is no cogent legal argument for limiting the assassination power to foreign soil. If the Globe is a Battlefield, then that, by definition, obviously includes the US.
Second, presidents change, and so do circumstances. The belief that Barack Obama — despite his record — is too kind, too good, too magnanimous, too responsible to target US citizens for assassination on US soil is entirely irrelevant. At some point, there will be another president, even a Republican one, who will inherit the theories he embraces. Moreover, circumstances can change rapidly, so that — just as happened with 9/11 — what seems unthinkable quickly becomes not only possible but normalized.
The need to object vehemently to radical theories of power has nothing to do with a belief that the current president will exercise it in the worst possible way. The need is due to the fact that acquiescing to these powers in the first instance means that they become institutionalized — legitimized — and thus become impossible to resist once circumstances change (another Terrorist attack, a president you trust less). That’s why it is always the tactic of governments that seek to abuse power to select the most marginalized and easily demonized targets in the first instance (Anwar Awlaki): because they know that once the citizenry cheers for that power on the ground that they dislike the target, the power then becomes institutionalized and impossible to resist when it expands outward, as it always does.
That’s what Thomas Jefferson meant when he wrote: “In questions of power … let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” It’s also what Frederick Douglass meant when he warned:
“Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them.”
Human nature means that once you vest a power in political leaders; once you acquiesce to radical theories, that power will inevitably be abused. The time to object — the only effective time — is when that power theory first takes root, not later when it is finally widespread.
(3) Holder did not disclaim the power to assassinate on US soilDefenders of the Obama administration now insist that this entire controversy has been resolved by a letter written to Paul by Attorney General Eric Holder, in which Holder wrote: “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 answer to that question is no.” Despite Paul’s declaration of victory, this carefully crafted statement tells us almost nothing about the actual controversy.
As Law Professor Ryan Goodman wrote yesterday in the New York Times, “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.” That phrase — “engaged in combat” — does not only include people who are engaged in violence at the time you detain or kill them. It includes a huge array of people who we would not normally think of, using common language, as being “engaged in combat.”
Indeed, the whole point of the Paul filibuster was to ask whether the Obama administration believes that it has the power to target a US citizen for assassination on US soil the way it did to Anwar Awlaki in Yemen. The Awlaki assassination was justified on the ground that Awlaki was a “combatant,” that he was “engaged in combat,” even though he was killed not while making bombs or shooting at anyone but after he had left a cafe where he had breakfast. If the Obama administration believes that Awlaki was “engaged in combat” at the time he was killed — and it clearly does — then Holder’s letter is meaningless at best, and menacing at worst, because that standard is so broad as to vest the president with exactly the power his supporters now insist he disclaimed.
The phrase “engaged in combat” has come to mean little more than: anyone the President accuses, in secrecy and with no due process, of supporting a Terrorist group. Indeed, radically broad definitions of “enemy combatant” have been at the heart of every War on Terror policy, from Guantanamo to CIA black sites to torture. As Professor Goodman wrote:
“By declining to specify what it means to be ‘engaged in combat’ the letter does not foreclose the possible scenario — however hypothetical — of a military drone strike, against a United States citizen, on American soil. It also raises anew questions about the standards the administration has used in deciding to use drone strikes to kill Americans suspected of terrorist involvement overseas …
“The Obama administration’s continued refusal to do so should alarm any American concerned about the constitutional right of our citizens — no matter what evil they may or may not be engaged in — to due process under the law. For those Americans, Mr. Holder’s seemingly simple but maddeningly vague letter offers no reassurance.”
Indeed, as both Law Professor Kevin Jon Heller and Marcy Wheeler noted, Holder, by deleting the word “actively” from Paul’s question (can you kill someone not “actively engaged in combat”?), raised more questions than he answered. As Professor Heller wrote:
“‘Engaged in combat’ seems like a much broader standard than ‘senior operational leader,’ which the recently disclosed White Paper described as a necessary condition of killing an American citizen overseas. Does that mean the President can kill an American citizen inside the US who is a lower-ranking member of al-Qaeda or an associated force? …
“What does ‘engaged in combat’ mean? That is a particularly important question, given that Holder did not restrict killing an American inside the US to senior operational leaders and deleted ‘actively’ from Paul’s question. Does ‘engaging’ require participation in planning or executing a terrorist attack? Does any kind of direct participation in hostilities qualify? Do acts short of direct participation in hostilities — such as financing terrorism or propagandizing — qualify? Is mere membership, however loosely defined by the US, enough?”
Particularly since the Obama administration continues to conceal the legal memos defining its claimed powers — memos we would need to read to understand what it means by “engaged in combat” — the Holder letter should exacerbate concerns, not resolve them. As Digby, comparing Bush and Obama legal language on these issues, wrote yesterday about Holder’s letter: “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.”
At best, Holder’s letter begs the question: what do you mean when you accuse someone of being “engaged in combat”? And what are the exact limits of your power to target US citizens for execution without due process? That these questions even need to be asked underscores how urgently needed Paul’s filibuster was, and how much more serious push-back is still merited. But the primary obstacle to this effort has been, and remains, that the Democrats who spent all that time parading around as champions of these political values are now at the head of the line leading the war against them.
Related mattersWhile the Obama administration continues to resist judicial review and statutory disclosure on all of these matters by invoking secrecy, dozens of current and former Obama officials (yet again) ran to the New York Times to anonymously justify what the US government is doing (specifically what it did in the Awlaki case), and the New York Times (yet again) published an incredibly sympathetic version of events based on what they were told. Marcy Wheeler will spend the day dissecting the worst parts of that NYT story, but last night she began with one particularly egregious attempt to justify what Obama administration lawyers David Barron and Marty Lederman did when legally authorizing the assassination.
Last week, in Portland, I gave the keynote speech to the ACLU in Oregon’s annual Liberty Dinner, and that 25-minute speech related to many of the issues discussed here (the ACLU speech was the abridged version of the one I gave several times last week, usually lasting roughly 45 minutes; I’ll post the longer version once it’s online):
For the past 10 years, I was a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters. I am the author of the New York Times Best-Selling book, How Would A Patriot Act?, a critique of the Bush administration’s use of executive power, released May, 2006.