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.
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