March 8, 2013 2:00PM

Parsing AG Holder on Domestic Targeted Killing

As I wrote on Thursday, I’m not really losing sleep over the prospect of domestic targeted killing, mostly because it seems as though it would be so manifestly politically radioactive even within the intelligence community that I doubt it could be done secretly, and would almost certainly provoke a constitutional crisis if it became public. That said, as Marcy Wheeler notes, if we look closely at the precise wording of Attorney General Eric Holder’s response to Sen. Rand Paul disavowing any such presidential prerogative, it’s actually phrased in a way that seems calculated to preserve a fair amount of wiggle room:

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.

Now, it’s true that Senator Paul often recurred to the example of a drone “dropping a Hellfire missile on your cafe experience” during his Wednesday filibuster, but it seems weirdly specific to give an answer that is, read strictly, confined to weaponized drones, as opposed to snipers or poison or what have you. More importantly, it’s not entirely clear what Holder considers to be the parameters of “engaged in combat.” During Paul’s filibuster, the senator often agreed that it would clearly be permissible to use defensive lethal force against someone “actively engaged in combat”—shooting down a plane on a heading to crash into a target, or killing a terrorist in the middle of a shooting spree. There’s nothing particularly controversial about those cases: in the latter instance, we’d expect police to do as much without any presidential orders.

But since Holder conspicuously omitted the word “actively,” it isn’t clear that this is what he means. The public hasn’t seen the detailed legal memoranda underlying the CIA’s overseas drone program, and so we can’t really know what to make of Holder’s statement without knowing what the government thinks it means to be “engaged in combat” in this non‐​traditional conflict. Though the Obama administration has (symbolically) abandoned the use of the phrase “enemy combatant,” the Bush Justice Department argued in 2004 that a “little old lady in Switzerland” who “gave money to a charity for an Afghan orphanage, and the money was passed to al Qaeda” might meet their definition of an “enemy combatant.” Could a citizen suspected of being involved in the planning stages of some future attack, then, be considered to be “engaged in combat” (perhaps even “actively”)? Against the backdrop of the sort of examples Senator Paul was discussing, it’s presumably not what we’d intuitively think of, but then neither have the targets of our overseas drone attacks necessarily been “combatants” in the colloquial sense of one directly personally engaged in bearing arms. Again, until we see the memos and have a fuller understanding of the administration’s broader reasoning, isolated statements like Holder’s are difficult to interpret with much confidence.

Such definitional game‐​playing would not exactly be a novelty for this administration, which has apparently expanded the definition of “imminent threat” to cover people believed to be senior leaders of hostile groups, whether or not there is any evidence that they are actively engaged in planning some impending attack. And recall how another recent attorney general, Alberto Gonzales, managed to mislead Congress about President Bush’s warrantless wiretap program by silently redefining “the program the president has acknowledged” to mean “only the specific components he has already acknowledged,” even though these components had never been previously regarded as a separate surveillance program. So if this kind of hyperliteral close parsing of a few sentences seems like paranoid hairsplitting, it’s only because such word games appear to be par for the course when it comes to classified counterterrorism programs.

Do I think this means there’s some domestic assassination plan in the works? Certainly not. But I would not exactly be shocked if the attorney general had used a bit of careful lawyerly language to placate Senator Paul while leaving an opening for a future administration to claim that technically his disavowal of authority had been far narrower than it seemed.