Privacy SOS

We still don’t know whether the DOJ thinks it can use lethal force in domestic non-emergencies

Adam Serwer over at Mother Jones has a piece up making fun of the GOP for proposing legislation the sponsors say would limit the president’s authority to conduct drone strikes on US soil. He writes:

Not wanting to take Attorney General Eric Holder's word for it that the US government won't be sending deadly flying robots to kill its own citizens, Senators Ted Cruz (R-Tex.) and Rand Paul (R-Ky.) have introduced a bill that would "prohibit drone killings of U.S. citizens on U.S. soil if they do not represent an imminent threat." 

The bill all but disarms the US government, leaving it with few options for lethal force against citizens other than gunstanks, helicopterssnipers, paramilitary squads,bombstasers and blunt force.

Unless you're not in the United States, or you're an "imminent threat." In that case, the government can drone away. 

Serwer is right to say that there are a million other ways the government could kill you if it wanted to. He’s also right to point out that the bill would do nothing to stop the government from continuing to kill foreigners pursuant to secret lethal authorities in strikes the EU Parliament has suggested are illegal.

But he avoids the most important part of the proposed text, a subject he has written about before: we have no idea what “imminent threat” means. The relevant portion of the bill says that the no-drone-killing inside the US rule “shall not apply to an individual who poses an imminent threat of death or serious bodily injury to another individual.”

But since the Obama administration refuses to release the Office of Legal Counsel kill program memos or any official interpretation of the phrase “imminent threat,” we don't know what this bill would actually do were it enacted. 

Adam Serwer has written about just this problem before, which is why I was confused to see him pen an article last night entitled “Attorney General: Obama Can't Order Drone Attack on Americans on US Soil.” Unless Serwer knows something we don’t, he can’t possibly make such a determination. 

That’s because the same murkiness Serwer correctly ascribes to the administration’s view of “imminence” applies to the phrase “engaged in combat,” the words Eric Holder used in his brief letter to Senator Rand Paul yesterday on the question of domestic targeted killings.

The Holder letter reads, in full:

"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."

But we have no idea what “engaged in combat” means to Holder or to President Obama. Could it mean “riding in a car to a place where the CIA has intelligence that a suspect is going to build a bomb”? Could it mean “is a member of al Qaeda”? After all, the United States has said that al Qaeda is at war with us, so couldn’t its soldiers be “engaged in combat” even if they are just brushing their teeth or sleeping?

Maybe, maybe not. But the crucial point is that, until the Obama administration comes clean and releases its kill memos to the public, we have no idea what “engaged in combat” means. 

Therefore asserting that the Attorney General said that “Obama Can't Order Drone Attack on Americans on US Soil” is simply inaccurate. 

Journalists who want to know the truth should push the administration to release its kill memos. Until then, they should be careful not to reward its secrecy by interpreting its statements in the most positive possible light. 

© 2021 ACLU of Massachusetts.