Obama Is Losing the Drone War

By Josh Gerstein, Politico

09 March 13

 

resident Barack Obama tried Thursday to offer a simple assurance: He isn't claiming the power to have drones kill an American not "engaged in combat" on U.S. soil.

The statement, delivered in the form of a 43-word letter from Attorney General Eric Holder to Sen. Rand Paul (R-Ky.), seemed intended to provide the unequivocal declaration Paul and his supporters were demanding when he mounted a nearly 13-hour, old-fashioned filibuster on the Senate floor Wednesday.

"We really had success," Paul told POLITICO in an interview Thursday afternoon. "We got the president to respond, and the answer we finally got from the president was, I think, the answer we had been looking for all along."

The letter quieted the drone flap and allowed the confirmation vote on John Brennan to be CIA director. But it didn't resolve several key questions - how broadly "engaged in combat" can be defined, for one - and didn't come close to addressing the legal and policy issues swirling around the Obama administration's drone campaign overseas.

What the administration's recent responses did make clear: Despite questions lingering for years about the increased use of drones, the flurry of attention to the issue this week caught the Obama White House by surprise. The White House appears to have misjudged the downside of its stances on transparency and how it could bend existing legal principles to justify the program - complicated by political miscalculations, fumbles by the attorney general and growing concern among some segments of the public.

"This has been slowly building, and when something is slowly building like this it's hard to tell whether what has stayed a slow burn and a simmer will never move past that - and when it will suddenly burst into public view," said Matt Miller, a former Justice Department spokesman.

"I would say they're somewhat like stunned bunnies at this point," said Kenneth Anderson, a law professor at American University and a Hoover Institution fellow.

One factor in the administration's ham-handed response may be a lack of political warning for a president accustomed to being bashed by the GOP for being too weak and diffident in his counterterrorism policy, but not used to attacks from the right for wielding military power recklessly.

For most of the past four years, the main line of Republican attack on Obama over issues like Guantánamo and Benghazi was that (with the exception of the bin Laden raid) he was too slow to act militarily and too reluctant to identify acts of terrorism. Figures such as former Vice President Dick Cheney and GOP presidential nominee Mitt Romney painted Obama as foolishly insistent on applying a law-enforcement model to the conflict with Al Qaeda and on reading Miranda rights to terrorists.

Fast forward to Wednesday, when Paul used his filibuster to argue that Obama was an out-of-control commander in chief willing to kill Americans as they read a newspaper at a café and that terrorism suspects - at least those who are U.S. citizens - are entitled to full due process and a criminal trial.

"There is a little bit of whiplash," said Miller. "Paul's position has been pretty clear for a long time, but when I see others joining who had never before voiced any support for a civil liberties position, it's obviously opportunism and a chance to be on the other side from the administration. That's what drew them to the floor and onto Twitter."

Anderson says Paul's take on drones taps into fears among many in the GOP that Obama has made an unprecedented power grab in the domestic policy sphere, establishing a kind of "imperial presidency."

"It's part of the libertarian wing who see this as a tyrannical president who rules by executive order without authorization by Congress. This is a fantasy, actually," Anderson said.

Despite support from the National Republican Senatorial Committee and Senate Minority Leader Mitch McConnell, Paul's effort clearly irked national-security-focused Republicans like Sens. John McCain of Arizona and Lindsey Graham of South Carolina.

Talking about a drone "killing someone in a café is not a mature debate or discussion," McCain said Thursday.

"I do mind our party taking a position completely different than we had with President Bush," Graham told POLITICO. "I didn't hear any of these people say anything during the Bush administration. Where were they? I just think it's politics. I think it's creating a straw man, creating a situation that doesn't exist."

Holder fanned the flames with his muddled answers Wednesday at a Senate Judiciary a hearing that took place just before Paul began his filibuster. Under questioning from Sen. Ted Cruz (R-Texas), Holder initially said it would not be "appropriate" to use a drone to kill a terrorism suspect in the U.S. who was not directly engaged in an attack, but it took Holder several answers to make clear he was actually saying it would not be legal or constitutional to use deadly force in those circumstances.

"I think that Attorney General Holder could have been more artful in his language yesterday," said Sen. Dick Durbin (D-Ill.).

"The Attorney General gave a typically imprecise and self-defeating answer," Harvard law professor Jack Goldsmith, who was a Bush-era chief of the Justice Department's Office of Legal Counsel, wrote on the Lawfare blog Wednesday. "But it was basically in line with the position of past presidents in saying that the President rejects military force when law enforcement means are available, but that the President can use military force in response to an attack like Pearl Harbor and 9/11."

Another Bush administration Justice Department lawyer, John Yoo, had a mixed verdict on Holder's statements.

"On the substance, I do happen to think Sen. Paul is incorrect," said Yoo, a Berkeley law professor best known for authoring legal opinions defending the waterboarding of terrorism suspects. "I don't often say this, but I think the attorney general has the right bottom line. Unfortunately, I think he gets there in the wrong way and he does it in sort of the most politically incompetent manner."

Speaking on a conference call organized by the conservative Federalist Society, Yoo said the Obama administration had brought the trouble on itself by publicly suggesting that Americans who sign up with Al Qaeda or a related group are entitled to due process when targeted outside a war zone. "If this administration thinks that these due process rights exist for members of Al Qaeda abroad ... that's why they're causing all this concern by people like Rand Paul," Yoo said.

By dragging its feet on greater transparency and oversight of the drone program and its legal rationale, the White House also made common cause between senators with grave concerns about the effort and others who basically support it but believe Congress must be kept better informed.

Despite Obama's publicly declared commitment to transparency, the Obama White House has long attempted a straddle on issues relating to public and congressional access to information about the drone program. For at least a year and a half, high-level officials have debated whether and how to say more publicly about the legal principles around the drone effort.

"What has happened is that the disclosure strategy has been decided by lawyers and spooks and that's seldom a winning game plan," Miller said.

The first set of discussions resulted in a speech Holder delivered in Chicago last March. It laid out in broad strokes many of the principles that fueled the discussions on the Senate floor Wednesday. The speech lacked specifics about the legal authority for many of the administration's claims. At the time, however, the speech drew little controversy aside from skeptical comments from the usual collection of human rights and civil liberties groups.

The approach the White House settled on was dubbed "the half monty," according to Newsweek's Dan Klaidman. Despite a few speeches like Holder's, the administration continued to withhold the actual legal memos justifying the program from the Senate and House intelligence committees and to resist Freedom of Information Act lawsuits brought by The New York Times and the American Civil Liberties Union.

Last June, the intelligence and judiciary committees were given a "white paper" summarizing one of the legal memos, but were told they had to keep it confidential.

Only after Sen. Ron Wyden (D-Ore.) and others threatened to hold up Brennan's confirmation, did Obama agree to show intelligence committee members a few of the actual classified memos on the morning of Brennan's hearing.

At the hearing, Brennan may have summed up the administration's "half-monty" approach when he declared, "What we need to do is optimize transparency on these issues and at the same optimize secrecy and the protection of our national security."

Even as Obama showed more drone-related memos to the Senate Intelligence Committee this week, the straddle strategy remained evident.

"We have worked with the committee to provide information about advice - legal advice on issues of concern to committee members - and have done that, recognizing that this is a unique and exceptional situation," White House press secretary Jay Carney said Thursday. But moments after describing the sharing as unusual and not the rule, Carney insisted Obama was committed "to work with Congress to be as transparent as possible about these actions."

Some Republicans assert that Obama essentially got a pass from Democrats on the issue for two years as he stonewalled their requests for information.

"I do think that what's happened under this administration's watch, with regard to drones, and the way they've handled it, and the lack of transparency, had [it] happened under Bush, you would have every Democrat on the floor calling for the impeachment of the president," Sen. John Thune (R-S.D.) said Thursday. "In my view, it's a very different standard, a double-standard that they get held to than the one that the Republican president would have been held to."

While Holder bore the brunt of the controversy this week, an administration official told POLITICO last month that the attorney general has long favored greater transparency regarding the program and repeatedly urged that the relevant Justice Department legal opinions be shared with Congress. "This is not a new line of thinking" on Holder's part, said the official, who asked not to be named.

Polls show Americans are broadly supportive of drone operations overseas. However, that support turns to opposition when the question shifts to whether it's proper to use deadly force to kill an American terrorism suspect in the U.S.

In a Fox News survey last month, 50 percent of voters disapproved of that idea. Asked if the president should have the authority to order such a strike "on his own," 63 percent of voters said he should not and only 32 percent favored such power.

In the Fox poll, Republicans were more troubled than Democrats by the notion of such a presidential power, but the greatest opposition - a whopping 76 percent - came from independent voters.