Targeted Killing: Drones

Senator Paul’s Moving Target

By Jack Goldsmith
Friday, March 8, 2013, 3:23 PM

Senator Paul has an op-ed this morning that repeats many of the misrepresentations of the administration’s positions that were contained in his filibuster.  It also contains in a nutshell one reason why this issue has been so hard to resolve: the question changed in the middle of the conversation.

Senator Paul says in his op-ed:

When I asked the president, “Can you kill an American on American soil?” it should have been an easy answer. It should have been a resounding and unequivocal, “no.”

The Senator then criticizes the administration for its first answer (which, through John Brennan, was that it had no intention kill an American on American soil).  I agree that this was a very poor answer – I noted at the time that it would invite trouble.

But then, a mere three paragraphs after saying that his question warranted an unequivocal answer, Senator Paul equivocates:

Now, some of my colleagues might take to the Senate floor and say, “Well, what if we’re being attacked on 9/11? What if there are planes flying at the twin towers?”  To that, I firmly say, by all means, use lethal force.

This is the same qualified answer that Attorney General Holder gave Senator Paul in his letter response to the Senator’s follow up letter, which basically contained the same question as the op-ed about killing an American citizen on American soil.  And it is the correct answer.  Under some circumstances, the President can kill an American citizen on American soil.  Senator Paul and the Attorney General thus agreed before the fillibuster on the answer to this pre-filibuster question.

Between this letter exchange and the filibuster, however, Senator Paul appears to have figured out that his original question wasn’t precise, and so his original question morphed to the quite different question whether the administration could target a non-threatening non-combatant U.S. citizen inside the United States.  The administration has never suggested that it could do this and has always said without qualification that the laws of war prohibit targeting non-combatants.  Unfortunately, the Attorney General gave a less-than-crisp answer to this very easy question from Senator Cruz at his hearing on the same day as the filibuster.  After the filibuster, the Attorney General tried to state the obvious: the administration lacks authority to target non-combatants inside the United States.  (Alas, the Attorney General’s letter states that the President “lacks the authority to use a weaponized drone to kill an American citizen not engaged in combat on American soil.”  I assume he means "to target," not "to kill," for he and Senator Paul agree that the President has could lawfully use lethal force to stop the planes descending on the Pentagon on 9/11, thereby killing noncombatant American citizen passengers as collateral damage.)