Are You "Engaged In Combat?"Submitted by Marc Clair on Wed, 03/13/2013 - 14:09
In response to Rand Paul’s filibuster of John Brennan’s nomination as CIA director last week – where the Senator pressed the issue of drone strikes and Presidential assassination powers – Attorney General Eric Holder issued a letter in response. The letter reads as follows:
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.
This was apparently enough for Senator Paul to declare “victory” on the drone issue. There are many issues with the phrasing of this question, but I’d like to focus on the “engaged in combat” part. As Law Professor Kevin Heller points out, Holder actually deleted a word from Paul’s original question when giving his response. The word? “Actively”. Heller writes:
Why did Holder delete one word from Paul’s question, changing “not actively engaged in combat” to “not engaged in combat”? Does that indicate that the President can kill an American inside the US whose activities qualify as “engaging in combat” even if they would not qualify as “actively engaging in combat”? What is the difference? What does the US understand by “actively”?
As we all know, it’s all about wordplay when it comes to lawyer-speak, and even more so when we’re talking about government lawyer-speak. Once the word “actively” is removed, the definition suddenly becomes a lot broader. If someone is “actively engaged in combat”, we would think they are actually in the process of an attack of some sort i.e. walking up to a building with a bomb, shooting up a mall, etc. Of course, law enforcement have always had the power to stop a violent act that is already in progress, so that would really be nothing new or extraordinary. But what happens when we take “actively” out of the question?