Rand Paul's Misplaced Celebration

by Jacob G. Hornberger
Mar. 11, 2013

With his 13-hour filibuster of President Obama's nomination of John Brennan to be CIA director, U.S. Senator Rand Paul has drawn the nation's attention to the issue of whether President Obama claims the authority to assassinate American citizens here at home, on American soil.

The president, through Attorney General Eric Holder, initially stated that the president could use the military to kill Americans on U.S. soil but only in an "extraordinary circumstance." Holder emphasized, however, that the president has "no intention of doing so."

Yesterday, at a daily briefing, White House Press Secretary Jay Carney read a short letter from Holder that's states as follows:

"Dear Senator Paul: 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. Sincerely, Eric H. Holder, Jr."

Senator Paul has construed that statement to mean that Obama is not claiming the authority to assassinate Americans on U.S. soil. "Hooray!” he exclaimed on Fox News, followed by a statement to CNN that he is "quite happy" with Holder's letter and only wished it hadn't taken so long to get an answer.

Unfortunately, Paul's celebration is misplaced. The unequivocal reality is that President Obama, like President Bush before him, does in fact claim the authority to assassinate Americans and anyone else, both here and abroad. This claim follows logically from how they view the so-called war on terrorism.

When the 9/11 attacks occurred, President Bush labeled them an act of war, notwithstanding the fact that they constituted criminal offenses. In fact, just today we are reminded, once again, that terrorism, including the 9/11 terrorism and terrorism committed by al-Qaeda, are federal criminal offenses by the U.S. government's plan to seek a federal grand-jury indictment against Osama bin Laden's son in law for conspiracy to kill Americans.

Moreover, don't forget that Zacharias Moussaoui, who was accused of having conspired to commit the 9/11 attacks, was prosecuted, tried, and convicted in U.S. district court. That's, again, because terrorism is, in fact, a federal criminal offense.

Don't forget also that American citizen Jose Padilla was ultimately indicted, prosecuted, convicted, and sentenced for terrorism, in a U.S. district court.

Those are just a few examples showing reality: Terrorism has long been a crime listed in the U.S. Code.

The problem occurred on 9/11, when Americans permitted President Bush to get away with treating the 9/11 attacks as an act of war. But they weren't, any more than the 1993 terrorist attack on the World Trade Center constituted an act of war "¦ or Timothy McVeigh's terrorist attack on the federal building in Oklahoma City "¦ or the Unibomber's acts of terrorism … or any other act of terrorism. Again, terrorism is a federal criminal offense, which is why accused terrorists are indicted and prosecuted in federal district court.

Once Bush was permitted to get away with labeling his "war on terrorism" a real war, like World War II, he decreed that he now possessed the extraordinary powers associated with a military commander-in-chief, which necessarily includes killing enemy soldiers. In the war on terrorism, he said, the terrorists are the enemy soldiers or "enemy combatants." In war, it's legal to kill the enemy.

Bush's position was fully endorsed by President Obama. It will also undoubtedly be fully endorsed by Hillary Clinton if she is elected president four years from now.

Equally important, both Bush and Obama have always emphasized that in the war on terrorism, the entire world is the battlefield. That includes the United States. Therefore, it logically follows that whatever powers Bush and Obama claim, as a wartime commander in chief, to kill people overseas extends to the United States. Again, in the war on terrorism, as U.S. officials have never ceased to remind us, the entire world is the battlefield. At the risk of belaboring the obvious, the entire world includes the United States.

Thus, there can be no doubt whatsoever that President Obama claims the authority to assassinate the enemy not only abroad but also right here in the United States. After all, ask yourself: why would he say that he lacks the authority to wage war here in the United States when the United States is part of the worldwide battlefield in the global war on terrorism?

Eric Holder's initial statements confirm that position. Saying that the president isn't currently planning to assassinate Americans isn't the same thing as saying that the president lacks the legal authority to assassinate Americans. Instead, it's saying the exact opposite. It's saying that while the president does, in fact, have the authority to assassinate Americans, he's simply not choosing to exercise that authority at the present time. However, if there is another major terrorist attack on American soil or some other big crisis, then, as Holder makes clear, all bets are off and the president might well expand his assassinations to American terrorists operating within the United States.

What about Holder's supplemental letter read yesterday by White House Press Secretary Carney? A careful reading of it reveals that it's simply a clever device to obfuscate Obama's real position. It's saying that the president lacks the authority to use a drone to assassinate an innocent American--i.e., an American "not engaged in combat on American soil."

But neither Bush nor Obama have ever claimed the authority to assassinate innocent Americans. The authority they have always claimed has been to assassinate guilty Americans (and guilty foreigners)--that is, those people who are guilty of being terrorists.

Well, guess who decides whether a person is a terrorist. You got it! The president makes that determination. And once he decides that a person is a terrorist in his global "war on terrorism," that's the end of the discussion. The assassination is carried out by his loyal military and intelligence forces, and that's the end of the matter. Under our post-9/11 system of government, neither the president nor the military nor the CIA is required to explain, justify, or even acknowledge the assassination.

Senator Paul deserves credit for flushing the president and his minions out into the open. But make no mistake about it: While the president is not currently assassinating Americans on American soil (American citizens Anwar al-Awlaki and his 16-year-old son Abdulrahman were assassinated in Yemen) or even rounding them up and transporting them to concentration camps or military dungeons, as he did with Jose Padilla, the reality is that under our system of government, he now has the power to do so.

As a practical matter, all that Obama needs is a good crisis for him to remove the sword from the sheath. But when that type of sword hangs over a nation, even when it is within the sheath, there is no possible way to consider that a free society. That's a society whose ruler is wielding powers that characterize the greatest tyrannies in history.
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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News' Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano's show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.