Does the President Have the Authority?

rand-paul-filibuster-1On Wednesday Rand Paul led a 13-hour filibuster to delay John Brennan’s nomination to be CIA director. It stemmed from a correspondence he’d received earlier from Attorney General Eric Holder.

Paul had asked Holder if “the President has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial.”

Holder responded that it is possible, that he could hypothetically imagine an unlikely but “extraordinary circumstance in which it would be necessary and appropriate.”

Paul’s filibuster united strange allies, from the ultra-conservative to the ultra-liberal (the latter groaning their admittance that they agree with him). Supporters also included many moderate Republicans, Tea Party voters, and anyone who sided with Obama’s campaign promises in 2008 of limitations on executive war powers.

I heard about it Thursday on Facebook from conservative college kids, New York liberals in their 30s, and more than a few grandmas. For the first time in what seems like forever, Jon Stewart and Fox News had some common ground. Twitter went nuts with the hashtag #standwithrand.

On Thursday Eric Holder sent a response to 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.”

Rand Paul hailed the response as a victory for civil rights. It probably is, but… why don’t I feel satisfied?

First, I’m not satisfied because there’s no definition of “combat.” I suppose it’s meant to be self-explanatory, but does it count if the person is helping combatants? Married to a combatant? Male and standing nearby a combatant? After all, we’re including that last group as combatants in our drone strikes elsewhere, so is that how we’d do things here?

More importantly, I’m disturbed by the very question being traded: “Does the President have the authority?”

The president doesn’t get a say on his own authority. Congress gets a big say. The Supreme Court gets a big say. Eric Holder wasn’t elected, doesn’t write the laws, and shouldn’t get zilch. He can defend the president before the courts if the executive branch was ever held accountable. You can ask him his legal opinion. But the president only has the authority granted to him by the Constitution; and he could be reigned in by Congress in an instant if they cared enough about it.

Thus the appropriate response from Mr. Holder would have been, “You tell me.”

From there, the decision would go to our elected representatives. And it would take more than our hashtags, Facebook support, blog posts, and Jon Stewart segments to make sure they vote against killing Americans without due process.

It would take more, but it’s certainly a start.

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