Mother Jones
reports that Attorney General Eric Holder has confirmed the
federal executive’s authority to target an American citizen on
American soil, with deadly force, without trial. The office of
Senator Rand Paul (R-KY) makes this
claim based on a letter
it received from Holder in response to Paul’s query about this
authority. Holder’s letter quotes Paul’s exact inquiry as whether
“the President has the power to authorize lethal force, such as a
drone strike, against a U.S. citizen on U.S. soil, and without
trial.” Holder’s response follows, with emphasis added:
As members of this administration have previously indicated, the
US government has not carried out drone strikes in the United
States and has no intention of doing so. As a policy matter
moreover, we reject the use of military force where
well-established law enforcement authorities in this country
provide the best means for incapacitating a terrorist threat. We
have a long history of using the criminal justice system to
incapacitate individuals located in our country who pose a threat
to the United States and its interests abroad. Hundreds of
individuals have been arrested and convicted of terrorism-related
offenses in our federal courts.
The question you have posed is therefore entirely hypothetical,
unlikely to occur, and one we hope no president will ever have to
confront. It is possible, I suppose, to imagine an
extraordinary circumstance in which it would be necessary and
appropriate under the Constitution and applicable laws of the
United States for the President to authorize the military to use
lethal force within the territory of the United States.
For example, the president could conceivably have no choice but to
authorize the military to use such force if necessary to protect
the homeland in the circumstances like a catastrophic attack like
the ones suffered on December 7, 1941, and September 11, 2001.
Speaking only for myself and not as a legal expert, I would note
that Holder does not explicitly confirm the authority in question.
Rather, he entertains the possibility of contemplating such an
action under extraordinary circumstances, giving the example of a
threat to the homeland. By implication, this threat would be direct
and imminent.
The only extension of the policy to American soil is directly
addressed. The legal authority to kill an American citizen without
trial has already been established, at least in theory. The
posse
comitatus doctrine’s possible implications for this discussion
are also worth noting. Around the same time that Mother
Jones’ story came out, Talking Point Memo and other sources
reported Senator Dianne Feinstein’s (D-CA) announcement that
the White House has agreed to release the classified Justice
Department memo drafted to provide this legal justification. This
comes after Senator Ron Wyden’s (D-OR)
allegation on February 7th that the DOJ has been less than
forthcoming after the White House made an ostensibly identical
executive order before John Brennan’s initial confirmation hearing,
during which Mr. Wyden leveled the charge.
This morning at 9:30 I will be covering the Senate Judiciary
Committee’s Department of Justice oversight hearing with Attorney
General Holder. Stay tuned for updates.
