In post-9/11 America, every admission by the executive branch of what the law doesn't permit is valuable.
Jack Goldsmith wasn't a fan of Senator Rand Paul's filibuster. The Harvard law professor, who served in the Bush Administration, argued on the influential blog Lawfare that the rhetoric employed on the Senate floor misrepresented the Obama Administration's avowed position on targeted killing. As he put it:
The filibuster was premised on the demand that the administration acknowledge that it lacked the authority to target a non-combatant U.S. citizen in the United States -- something that the Attorney General had done earlier in the day, albeit in his typically roundabout and unclear fashion.His request: "Congress should debate these issues responsibly, at least roughly consistent with the truth, and without recourse to outlandish hypotheticals portrayed as administration positions."
That critique astounds me.
Attorney General Eric Holder's initial letter about killing Americans on U.S. soil plainly left open the possibility that the president could order such a step against someone who wasn't engaged in combat. Its weasel words and inapt examples ought to be plainly apparent to any educated reader. Goldsmith acknowledges that Holder's subsequent statement was "roundabout" and "unclear." During the filibuster, Paul and Senator Ted Cruz explicitly discussed that roundabout, unclear statement. Paul even spoke about how close Holder came to giving the answer he sought, and how it was confounding, given Holder's comments, that the Obama Administration wouldn't put out a clear, written statement merely confirming what Holder had seemed to be saying. Paul added that he didn't think Obama would actually kill a noncombatant during his term. In summary, Paul accurately characterized everything the Obama Administration had said.
Moreover, Paul was right about what the Obama Administration hadn't done. The White House hadn't affirmed, in clear, straightforward language, that the law did not permit killing noncombatant Americans. To settle for Holder seeming to indicate as much would've been foolhardy. Executive-branch lawyers are highly trained professionals, as Goldsmith well knows. Imprecise language on their part ought to trigger extreme scrutiny, not only because national-security officials so frequently try to mislead the public, but also because every statement that someone like Holder makes is going to be read with lawyerly literalness by future White Houses.
With that in mind, look what Paul accomplished by refusing to settle for Holder's imprecise statements. Here's Holder's initial letter:
It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941 and on September 11, 2001.Here's what Holder released the morning after the filibuster:
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.Only the latter statement constrains the executive branch.
Goldsmith objects to "outlandish hypotheticals." Well, guess what? Only by pointing out that the Obama Administration had never foreclosed its ability to wield outlandish powers did Paul manage to extract a clear concession that killing noncombatants isn't its prerogative. Team Obama could've affirmed as much months ago. It is their needless stubbornness that prompted Paul's tactics. His success means that it will be harder for any future president to argue that he or she can kill Americans not engaged in combat. Once I would've thought that unthinkable anyway. Then I watched the Bush Administration institute torture and embrace John Yoo's theories. Now I'll take every specific executive-branch statement of what the law doesn't permit that I can get.