Publicity Stunt Postscript: Senators Cruz and Paul Propose Legislation on Targeted Killing by Domestic Drones

Readers by now know this much: Senators Rand Paul and Ted Cruz harbor great anxieties about possible drone strikes against U.S. citizens on U.S. soil---chiefly against citizens who pose no imminent threat to our national security. And their concerns apparently will outlive John Brennan’s confirmation, earlier today, as Director of the Central Intelligence Agency. (For takes on Senator Paul's now-averted filibuster of Brennan's nomination, see these posts from Jack, Steve, and Ben.) Consider this bill, proposed by Senator Cruz on behalf of himself and Senator Paul and entitled, "To prohibit the use of drones to kill citizens of the United States within the United States." The legislation's operative provision says as follows:

The Federal Government may not use a drone to kill a citizen of the United States who is located in the United States. The prohibition under this subsection shall not apply to an individual who poses an imminent threat of death or serious bodily injury to another individual. Nothing in this section shall be construed to suggest that the Constitution would otherwise allow the killing of a citizen of the United States in the United States without due process of law.

(The bill apparently is a worked-up version of a nonbinding Senate resolution (image, text) that Senator Paul proposed during his talking filibuster.) Three points about the Cruz-Paul bill, and its engagement (or not) with serious due-process and other issues: First, it's not technology-neutral and therefore not a serious attempt to "restrain[] government power," to borrow a phrase from Senator Cruz. As written, the proposal does not categorically prohibit the President from using lethal force domestically against citizens who don’t pose an immediate threat to others. Instead, the Cruz-Paul bill merely prohibits the President from ordering a drone strike under such conditions. So Predator, no; F-16, sure. That’s surely cold comfort to those who suspect the worst about the Obama Administration, or executive authority more generally. This marks another example of the confusion on the part of many targeted-killing opponents, between technology and targets. Is this about drones, or a worry about the risk of error? The bill unfortunately suggests the former. Second, while the bill pounces on a horrible scenario that the government hasn't and almost surely won't ever confront---a drone strike, here in the United States, against a single innocent citizen minding his or her own business---it also refuses to grapple with the sorts of nightmarish, constitutionally difficult scenarios that the government actually has confronted, and unfortunately might well confront again. Imagine another 9/11---only this time around, United 93’s hijackers are, like its passengers, all citizens. The hijackers seize control, transforming the passengers into hostages and the aircraft into a large missile headed for the Capitol. Can the White House send a drone to destroy the aircraft, both hijackers and hostages alike? It’s hard to say for certain, but the answer according to the Cruz-Paul bill seems to be "no," in that its text countenances a lethal strike only against the hijackers (who, unlike their hostages, pose an imminent threat to others). This might be a matter of drafting, as we doubt that Senator Paul would have the the government stay its hand in this situation. But whatever the intent, the loophole is there: to the extent that, as noted above, the Cruz-Paul bill would allow the President to use a fighter plane in lieu of a drone (as President George W. Bush reportedly ordered on 9/11), the bill isn't doing very much anyway. Targeting citizen terrorists embodies a quintessentially "hard national security choice[,]" and, where innocent civilians are involved, a tragic one at that. But these hardest choices have almost nothing to do with, as Senator Paul suggested in his filibuster, Jane Fonda; or, as Senator Cruz has hypothesized, a Citizen Terrorist Suspect Enjoying His Coffee At A Café But Posing No Threat. Oddly enough, Senator Paul began, and Senator Cruz joined, last night’s filibuster after both men presumably knew the Administration's position---that is, after the Attorney General, during his Judiciary Committee testimony, explicitly (if somewhat reluctantly) disclaimed the power to kill Cruz’s coffee-sipping bad guy. He reaffirmed that view in even stronger terms today in a second letter to Senator Paul about drones and citizens. In our view, the real debate is, and should continue to be, about people like Anwar Al-Aulaqi (a U.S. citizen abroad, targeted by dint of his association with al-Qaeda and with genuine threats to the country) and Abdulrahman al-Aulaqi (a U.S. citizen unintentionally killed in a strike against other targets). Third, just as bad cases make bad law, bad questions generate bad answers. Attorney General Holder's first letter to Senator Paul noted that lethal force against a U.S. citizen on U.S. soil might be conceivable under "extraordinary circumstances," such as those that occurred on 9/11. But Holder's latest letter is more categorical in rejecting the President's authority "to use a weaponized drone to kill an American not engaged in combat on American soil." We doubt that this second, two-sentence letter is meant to substantively modify the position taken in the first, for the reasons discussed above---it's inconceivable (as well as alarming) that, if something like 9/11 happened again, the President wouldn't use all the power at his disposal to prevent it. This is true even if doing so meant intentionally causing some citizen deaths in the process---again, a horribly tragic, but seemingly unavoidable, choice. But the imprecision in the Attorney General's latest letter shows what happens when you're repeatedly hammered by hyperbolic questions like Senator Paul's: you say what you need to say, in order to overcome the political hurdle of the moment (in this case, a block on Brennan's confirmation vote); but you don't wind up talking soberly and seriously about the limits of our government's most awesome power. There's nothing wrong (and everything right) with vigorous, principled opposition to certain military tactics, especially where the United States claims authority to target its citizens with lethal force. That's dramatic, scary stuff. And we (along with everyone on Lawfare who's addressed the issue) think that the debate therefore needs to continue---in the public sphere, in the executive branch, and in Congress. But that debate ought to focus on what's actually at stake, not some implausible parade of horribles involving non-threatening people at coffeehouses or Vietnam-era peace activists. In opting for the latter approach, Senators Cruz and Paul needlessly cheapen a worthy and exceedingly important debate.