Patterico's Pontifications

3/6/2013

Ted Cruz Batters Eric Holder on Drone Strikes Without an Imminent Threat

Filed under: General — Patterico @ 5:47 pm

It seems to me that Cruz is hitting on the key distinction that separates acceptable lethal force on American soil from nonacceptable lethal force: is there an imminent threat?

What is eye-opening about this exchange is that Eric Holder seems to think the words “appropriate” and “constitutional” have the same meaning. It is a common failing of leftists, to be sure, but I expect more from the head of the Department of Justice:

As I noted this morning, Dick Cheney gave the direct order (which he says ultimately came from the President) to shoot down Flight 93 if necessary. That’s an imminent threat. It isn’t necesary to imagine a situation where something like that would be necessary. We’ve already experienced it.

That said, in a world where LAPD officers think they need to shoot at what turns out to be a delivery truck; in a world where criminals “SWAT” people they don’t like; in a world where “intelligence” is often imperfect . . . you had better be damned sure you’re right in such a circumstance.

The President already has authority to launch nuclear warheads. Like it or not (and with this guy, I don’t), we already entrust the holder of that office with a tremendous amount of responsibility and authority.

All that said, in a situation where there is no such imminent danger, the Constitution — not just prudence — prevents such unilateral action. It is troubling that, even when the distinction is carefully explained to him more than once, Eric Holder doesn’t seem to understand the difference.

25 Responses to “Ted Cruz Batters Eric Holder on Drone Strikes Without an Imminent Threat”

  1. Ding.

    Patterico (9c670f)

  2. Eric Holder continues to show that his qualifications for the office of DOJ rest solely on his skills as a bagman.

    SPQR (768505)

  3. While Rand Paul, Ted Cruz, Marco Rubio and others filibuster Brennan’s nomination over whether the President can kill Americans on American soil, a number of GOP Senators are dining out with Obama.

    DRJ (8b9d41)

  4. It’s more and more clear who represents our country’s actual best interests, and who is holding an office for other reasons.

    Dustin (73fead)

  5. I’m glad to see I’m not the only one who found Holder’s letter incoherent and confusing. Just like with Cruz today, maybe he was just too dense to understand Paul’s question. Because he sure didn’t answer it.

    The guy is hopelessly obtuse. In the case of Pearl Harbor when an enemy naval force attacke US military installations nobody called President Roosevelt and asked permission to shoot back; commanders always have the right and duty to defend their commands.

    How is Pearl Harbor even remotely relevant to the question of using drones to kill US citizens on US soil?

    I thought Hagel was an idiot. Does this guy even have the remotest idea of how things work? I’d have been embarrassed to have signed that memo.

    9/11 was just slightly better in the sense that everyone knew there were Americans on those planes. But they weren’t the targets.

    Maybe someone should get holder to describe a scenario where he thought the use of drones would be appropriate. It should be amusing.

    I can’t imagine a single situation. The drone is going to have to conduct surveillance of the individual first before you’d know it’s even the right guy (unless VP Joe “shoot through the door” Biden is on the joystick). I can’t imagine a situation where a drone is conducting surveillance of an individual on the ground in US territory, and that’s the only asset you’ll have available.

    Steve57 (60a887)

  6. Exactly, the problem is rarely would you have supervision from the Oval Office, the authority would be delegated to the operators, on the ground, or in the air,

    narciso (3fec35)

  7. Joe diGenova and Victoria Toensing should hang their heads in shame every time Holder utters a word.

    Colonel Haiku (2637d0)

  8. In answer to # 5, I can imagine a scenario where you’re using an armed drone to track a known terrorist who’s just completed a terrorist act, who’s fleeing, but poses no imminent threat to anyone — he’s just a dangerous guy who needs to be caught or, if it’s not possible to catch him, killed. If he’s probably going to get away unless the armed drone “takes him out,” wouldn’t that be okay under the “fleeing felon” rule articulated in Tennessee v. Garner (1985)?
    http://en.wikipedia.org/wiki/Tennessee_v._Garner

    Of course, the context in which lethal force was held okay in Tennessee v. Garner shows how ridiculous it is to think an armed drone could be used to kill even a known terrorist while drinking coffee at a cafe (one of Paul’s best examples).

    Badger Pundit (d64cbc)

  9. @ #8, I still don’t quite see it. A drone doesn’t just happen on these things. Unless the government is planning on having armed surveillance drones overhead pretty much everywhere 23/7.

    Otherwise we’ve skipped over a bunch of steps and I still have to wonder how did we direct this drone to this guy but nothing else?

    No police helo. No LEOs. Just the drone.

    To get the drone onto him you must have had some intel. And I can’t imagine a situation inside the US where a terrorist who is a US citizen could pose an imminent threat to other American citizens and there were no alternative or additional assets that could have also gotten onto this guy.

    A drone has several advantages over a manned aircraft, but most of them really apply in a warzone. Which is now the point where I’m at in my thinking. I’ve gone past the question of when is it OK to kill someone in a drone strike to wondering why is the government talking about using armed drones in the first place.

    Because the only answer I can arrive at is it’s just the tool for a targeted killing when you want to keep it close hold. You don’t want the cops involved, you don’t want local authorities to know anything about it. Just a few people read into a compartmented program and the President and his cabinet.

    Which may strike some as paranoid, but really why would you use this tool when there are so many other tools in the shed which have also proven their worth?

    Steve57 (60a887)

  10. So if they do gun registration, if we are like Canada, at least 75% of us will not comply. If a non-complier also has facebook comments that there is a need to bring back tar and feathers, can that be one of those “unforseen” circumstances where the feds decide to not risk AFT people in a raid but instead launch a hellfire through that persons window? Or when he checks the mail? How about randy Weaver, that was a ATF sting that hinged on a technicality, followed up with criminal actions by the government. Would Holder/Obama/Nepalitano end that with a drone strike? Maybe not today, but you can bet your bottom dollar that they would rig a case that gains public sympathy (as they tried to do with Fast and Furious) just to get the public and the public servants involved psychologically prepared to do it when convenient.

    Smarty (1f69a9)

  11. We need a civilian supply of drone detection equipment, electronics warfare equipment, and anti-drone weaponry. The intent of the second amendment is to make sure that the government has a healthy respect for the power of the people to take the government back and deal with corruption in the most extreme. Armed drones circling the skies is an attempt to eliminate all threat of civilian action against tyranny, which itself is pre-emptive tyranny, as is gun registration schemes.

    Smarty (1f69a9)

  12. I just got to watch the Cruz video today. That had to leave a mark.

    JD (b63a52)

  13. I’m not asking about propriety – a defining moment showing the contrast between the rule of law and the rule of the personal preference of those in power.

    Amphipolis (d3e04f)

  14. Smarty – I have a drone detector on my roof. I got it through the Amazon link on Patterico’s sidebar.

    daleyrocks (bf33e9)

  15. We’ve got 3 threads related to drones, I’ll put this comment here.

    Back when Mayor Goode had to deal with the MOVE incident in West Philly, the reported intent at one point was to drop an explosive device on the top of the building to remove a military bunker-style structure that provided cover to shoot at police. As most know, a fire was started which spread to many surrounding buildings as well.

    One obvious question is the one Cruz is pressing about what the President can do. A related question is what does he need to be able to do.
    In dealing with domestic crime, there is usually a direct encounter that gives opportunity for criminals to stand down. Given the lethality of weaponry and technology I think we can see the potential need to “take out” someone ASAP in an imminent threat, but would that not be able to be done through current state and federal law enforcement (and perhaps national guard?). I guess the one exception is if you have an active terrorist headquarters coordinating an attack that really needs the equivalent of a military air strike (but what about national guard at the orders of a governor?).

    MD in Philly (3d3f72)

  16. It is interesting as a non-lawyer to watch two lawyers try to outlawyer one another. it seems a questioning lawyer always wants to back a person into a corner to give a specific limited answer. A lawyer not doing the questioning likes to give answers that allow for a billion ways of interpretation later on, just as a matter of general practice.

    MD in Philly (3d3f72)

  17. “Back when Mayor Goode had to deal with the MOVE incident in West Philly, the reported intent at one point was to drop an explosive device on the top of the building to remove a military bunker-style structure that provided cover to shoot at police. As most know, a fire was started which spread to many surrounding buildings as well.”

    MD in Philly – A decision which will live on in the annals of Epic Fail.

    daleyrocks (bf33e9)

  18. yes daley, it will indeed.
    For myself, I don’t think there was ever enough honest and even-handed discussion to know enough truth to make a good decision. It seemed to me that the neighborhood did want them out, as in yesterday, and it was in the middle of a block of row-homes.

    The other option was probably to set up a “siege” to starve them out, which would have displaced most of the people of the block as well.

    I’m not trying to defend Goode, just pointing out that people will demand action and when action is done, if things don’t work out as planned the same people are the first to complain.

    MD in Philly (3d3f72)

  19. The question seems moot when you recall that an FBI sniper shot at Ruby Ridge shot an unarmed woman in the head as she was standing in her kitchen doorway holding an infant child in her arms.

    ropelight (0ea0bb)

  20. too true, ropelight.

    MD in Philly (3d3f72)

  21. Eric Holder wants the same standard for inside the United States and outside.

    He could say drones can be used in any situation whre military action is warranted, or where an Air Force fighter could be used – he almost said that in fact, without actually saying it.

    But he doesn’t want to say where and when military action is warranted, not even in general terms..

    There are problems with the Obama Administration’s legal reasoning, and these sorts of questions point that out.

    Sammy Finkelman (d22d64)

  22. Doc, as I remember it from the safety of my bunker here on the Left Coast, a seige was considered but passed over as too expensive as they City would have had to relocate, house, and feed all of those people residing in that row-house.
    In hind-sight, that “too-expensive” option would have turned out to be very cost-effective, as they had to do all that anyway, plus rebuild the block.

    askeptic (b8ab92)

  23. “…There are problems with the Obama Administration’s legal reasoning, and these sorts of questions point that out.”

    FTFY, SF!

    askeptic (b8ab92)

  24. #8 & #9 – Exactly. Tennessee v Garner already gives LEO the authority necessary to kill a fleeing felony suspect that poses a threat to the community. Under that precedent, Tim McVeigh could have been droned (or whatever) on the way to the OKC building, or as he fled the scene, but as a practical matter, there wouldn’t be time and it wouldn’t be necessary for the military to get involved. And the whole thing would have been pre-empted by suspicion and warrants for surveillance, otherwise we wouldn’t have the intelligence in the first place.

    Due Process already accounts for situations that call for immediate lethal force.

    This white paper wasn’t drafted to deal with the above situation. It was drafted to rationalize and justify the targeted killing of Anwar al-Awlaki, and expand the President’s authority so that Awlaki (and his associated, and his child) could have been killed even if he were in the US, not based on evidence that would be sufficient to get a warrant, but based on the President’s say-so and, most likely, classified intelligence.

    The General (90bbb6)

  25. Comment by askeptic (b8ab92) — 3/7/2013 @ 11:45 am

    There are problems with the Obama Administration’s legal reasoning, and these sorts of questions point that out.”

    FTFY, SF!

    No, I mean the legal reasoning, because in other places pften they are lying, but legal reasoning is neither true nor a lie, although it could be clearly wrong. There are genuine problems with the Obama Adminsitration’s reasoninbg and also false public arguments.

    Sammy Finkelman (d22d64)


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