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by
Matt Vespa

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March 6, 2013 - 3:38 pm

On Tuesday, the Department of Justice pretty much said that the president could conduct drone strikes on American soil.  Andrew Kirell of Mediaite posted yesterday that:

[Last] Tuesday, CIA director nominee Brennan told Paul that “the agency I have been nominated to lead does not conduct lethal operations inside the United States — nor does it have any authority to do so.” Attorney General Holder followed up with a letter that said lethal force against American citizens on U.S. soil is “entirely hypothetical” and constitutes “an extraordinary situation” “we hope no president will ever have to confront.” Holder cited 9/11 and Pearl Harbor as examples of such domestic attacks that may warrant the executive branch to authorize an attack on American citizens on U.S. soil; but, of course, he cautioned that such a circumstance is “unlikely.” (But it could potentially exist.)

However, Noah Rothman, also of Mediaite, wrote today that Sen. Ted Cruz, in a tense exchange with Attorney General Eric Holder, finally received a clear answer from the DOJ that such strikes would be unconstitutional on U.S. soil.

In your legal judgment, does the Constitution allow a U.S. citizen on U.S. soil to be killed by a drone?” Cruz asked Holder pointedly.

“For sitting in a café and having a cup of coffee?” Holder replied. Cruz clarified that his hypothetical individual subject to a drone strike did not pose an “imminent and immediate threat of death and bodily harm,” but that person is suspected to be a terrorist.

“I would not think that that would be an appropriate use of any kind of lethal force,” Holder replied.

“With all respect, Gen. Holder, my question wasn’t about appropriateness or prosecutorial discretion. It was a simple legal question,” Cruz clarified.

“This is a hypothetical, but I would not think, that in that situation, the use of a drone or lethal force would not be appropriate,” Holder replied.

“I have to tell you I find it remarkable that in that hypothetical, which is deliberately very simple, you are not able to give a simple, one-word answer: no,” Cruz added. He said he think that his scenario would constitute a “deprivation of life without due process.”

Holder agreed and added that lethal force in Cruz’s case “would not be appropriate.”

“You keep saying appropriate – my question isn’t about propriety,” Cruz goaded. “My question is about whether something is constitutional or not.”

When Cruz was about to abandon his line of questioning after a number of equivocations from Holder, the attorney general clarified that he was saying “no” such actions would not be constitutional.

While I support drone strikes on terrorists overseas, their use on American soil is unsettling.  Drone strikes is one area where I agree with the president.  I also think that American-born terrorists, like Anwar al-Awlaki, was a legitimate strike.  He forfeited his the rights and legal protections of the United States as a citizen when he decided to commit treason by becoming an al-Qaeda  recruiter.

Furthermore, if an American-born terrorist, who intends to do us harm, is sighted in the U.S., then it’s up to the FBI, or any arm of civilian law enforcement, to arrest him.  To blow him, or her, out of the sky with a drone strike could be a violation of the Posse Comitatus Act, and I’m sure congressional approval for such an action wouldn’t find much support either.  In fact, that’s the only way a drone strike on U.S. soil could be legal.

Nevertheless, the argument that American-born terrorists should be arrested, detained, and given the right of due process under the law isn’t illegitimate.  In fact, one could argue that Sen. Rand Paul’s argument holds more legal weight than that outline by the Obama administration in the DOJ’s White Paper.  Then again, detection and extraction of a person of interest could end in failure, and result in that individual continuing to plan attacks against the United States.  Furthermore, the issues of non-state actors and the hindering a president’s wartime powers also factor into this argument.  It’s a discussion worth having, but concerning drone strikes on American soil – the answer should be no.  However, 45% of Americans think that the president should be able to execute such an operation, and 41% of Democrats agree.

 

(h/t Mediaite, Shark Tank)

Matt Vespa is a conservative blogger who contributes to CNS News, RedState, Noodle Pundit, and was formerly with Hot Air's GreenRoom.

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All Comments   (12)
All Comments   (12)
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Did you ever read about the captured Nazi spies who landed in America at the beginning of our involvement in WWII?

http://en.wikipedia.org/wiki/Operation_Pastorius

They were all executed except for the two who turned themselves in and exposed the plot. This is an instructive case.
1 year ago
1 year ago Link To Comment
They got a trial, though.
1 year ago
1 year ago Link To Comment
I am amazed that this issue keeps being batted about on due process and other Constitutional grounds. Use of a drone is an act of war. The propriety of it's use depends on the Law of War, not civil or criminal law. If an American citizen becomes an enemy combatant, he is as much a legitimate target as any other enemy combatant- no more or less. The complications of a war against non-state actors can make that question difficult, but someone like al-Awlaki is not one of the harder cases. Would a German-American who chose to fight with the Nazis, even if identifiable as such, need a trial before he could be killed?
1 year ago
1 year ago Link To Comment
Except he wasn't bearing arms, and he wasn't on a battlefield. Oh, and we're not officially at war.

How is it any different than say, the government decided to drone strike the Hutaree Militia instead of arresting them?

And remember, the definition of "terrorist" is not particularly well defined. It originally was people who deliberately targeted civilians so as to create "terror". But now anything the government doesn't like is labeled as a terrorist. And that includes the Tea Party in the eyes of many.
1 year ago
1 year ago Link To Comment
Oh, and use of military force on American soil is subject to Posse Comitatus, as well as the Law of War.
1 year ago
1 year ago Link To Comment
I'm beginning to reconsider whether I want a wall built on our borders.
1 year ago
1 year ago Link To Comment
To Eric Holder, "due process" means he has an appointment with his barber.
1 year ago
1 year ago Link To Comment
How do you decide that an American has committed treason (and therefore forfeited his rights) without a fair trial including due process?
1 year ago
1 year ago Link To Comment
When they leave the country to join an armed band at war with the US, that's a pretty good indication.
1 year ago
1 year ago Link To Comment
That's also a lynching. Even a trial in absentia would be permitted. Try him for treason, sentence him to death, blow him up.

The trial can even be a closed one (so that the bugger doesn't know a drone is coming for him), but the moment you give the government power to unilaterally kill someone just because they've been suspected of terrorism is the moment you yourself can become a target, for how do we not know you are a terrorist?

The government may one day declare you or I one just because they feel like it, and we're done.

Respect for the law must be upheld, even in the face of those who do not, otherwise we just end up like them. But we're not them, we are better.
1 year ago
1 year ago Link To Comment
Nonsense. Someone who leaves the US to join an armed force at war with the US on foreign soil is an enemy combatant.

"The government declaring you or I (a terrorist)" on DOMESTIC soil is an entirely different matter.
1 year ago
1 year ago Link To Comment
But legally speaking, we're not at war. We haven't actually declared a war since WW2.

Beyond that, it's not like they did take up arms directly. Is writing or producing propaganda enough? Again, the obvious example is Jane Fonda. She would have been eligible for a drone strike.

And what about the guy's 16 year old son. Was he condemned to death just because of who his father was? Apparently so, in the eyes of the government.

1 year ago
1 year ago Link To Comment
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