[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.