Republican Senator Rand Paul of Kentucky, who sent three letters to CIA director nominee John Brennan requesting an answer on “whether the president has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil,” finally received an answer from Attorney General Eric Holder. The answer indicates the administration of President Barack Obama does, in fact, believe it has the power to assassinate US citizens on US soil with lethal force.
Holder, after a few paragraphs contextualizing his ultimate answer, told Paul in a letter:
…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 of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001…
Paul reacted, “The US Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening – it is an affront the Constitutional due process rights of all Americans.”
Though Holder noted the country’s “long history of using the criminal justice system to incapacitate individuals located” in America “who pose a threat to the United States” and he contended “the use of military force” would be rejected “where well-established law enforcement authorities in the country provide the best means for incapacitating the terrorist threat,” the mere fact that his answer was a yes is outrageous. However, it fits the framework for fighting a permanent global “War on Terrorism” without any geographical limitations, which the Obama administration has maintained it has the authority to wage.
Guardian writer Glenn Greenwald, speaking at the Freedom to Connect conference, said today, “There is a theoretical framework being built that posits that the US Government has unlimited power, when it comes to any kind of threats it perceives, to take whatever action against them that it wants without any constraints or limitations of any kind.”
Paul had to send three letters to Brennan and the question had to be raised by someone in a Google+ chat with the president before the Obama administration would give something resembling an appropriate answer because, as Greenwald suggested saying “yes” would “illustrate the real radicalism that the government has embraced in terms of how it uses its own power.” If they said “no,” it would “jeopardize this critical theoretical foundation that they very carefully have constructed that says there are no cognizable constraints on how US government power can be asserted.”
As it turns out, Holder, the Justice Department and the wider Obama administration opted to not jeopardize the framework.
FBI Director Robert Mueller, around one year ago, was asked in a congressional hearing by Rep. Tom Graves (R-Ga.) whether current policy would permit the killing of US citizens on US soil. It was just after Holder had given a speech at Northwestern University highlighting the president’s legal authority to use targeted killings. Mueller answered, “I have to go back. Uh, I’m not certain whether that was addressed or not.” Graves followed up and asked, if “from a historical perspective,” the federal government had “the ability to kill a US citizen on United States soil or just overseas.” Mueller’s answer was, “I’m going to defer that to others in the Department of Justice.”
Constitutional law professor Jonathan Turley reacted, “He appeared unclear whether he had the power under the Obama Kill Doctrine or, in the very least, was unwilling to discuss that power. For civil libertarians, the answer should be easy: ‘Of course, I do not have that power under the Constitution.'”
Brennan sent a letter to Paul, which stated, “The agency I have been nominated to lead, the CIA, does not conduct lethal operations inside the United States—nor does it have any authority to do so. Thus, if I am fortunate enough to be confirmed as CIA Director, I would have no “power” to authorize such operations.”
Thus, it appears the CIA would not be carrying out operations if the assassination of a person was authorized, but, perhaps, a US military force would carry out the operation instead.
The scenario where Holder suggests the president might authorize a targeted killing operation is similar to the “ticking time bomb” scenario officials from the administration of President George W. Bush touted to justify having the power to torture. The rationale was that someone has information about an imminent terror plot so interrogators must torture that person to get that person to talk.
In this case, the Obama administration claims the unlimited and unconstrained power to authorize the assassination of a person in extraordinary circumstances because that could be the “only” way to get a person perceived to have been responsible for a “catastrophic attack.”
Upon further examination, the circumstance where this authority is claimed is peculiar. Holder is saying the president might use it after and not before an attack. If there was a person about to engage in a terror attack, that person might not be subject to a targeted killing, but, after the attack occurred, a person could be targeted and killed. It seems like if one was going to claim this totalitarian power they would claim the power to prevent the “catastrophic attack.”
Additionally, when America has already been attacked and the media is covering the carnage and destruction and politicians or leaders are committing themselves to retaliation or vengeful justice, the president may need to authorize the killing of some US citizen on US soil, who may have been responsible. But, remember, the attack happened. Intelligence agencies missed the fact that this person, who is now being targeted, was going to attack. What intelligence or information do they have to kill him? Is it hearsay from victims nearby the site of the attack? Did some bystander suggest the person was talking about attacking the United States? How does the US government have a target so quickly in the aftermath? Assuming “terrorists” would want to attack populated areas to create the most damage and cause the most deaths, why wouldn’t law enforcement or SWAT teams be able to be deployed to capture without using some kind of premeditated authorization to assassinate a person?
There may never be a targeted killing of a US citizen on US soil and the question of whether a US citizen could be targeted and killed on US soil may remain a hypothetical question for some time, but the fact that the Obama administration has told a US senator there is a circumstance where the government could target and kill someone, who is a citizen, on US soil without charge or trial is a stark example of the imperial presidency. It is an example of how there is, for the most part, no power to violate civil liberties or human rights the president won’t claim in order to respond to “threats” however it chooses.
Already, under the guise of the fight against terrorism, the government has expanded a Surveillance State and protected its authority to eavesdrop and spy on US citizens. It has asserted the power to put people on lists to prevent Americans from traveling on the basis that they may pose some threat (except those put on lists do not typically get to know why they are being put on the list nor do they really get to challenge their listing). The power to seize electronic devices at the US border in suspicionless searches has claimed. Strip-searches without suspicion or probable cause can be carried out by authorities at airports on the basis that one’s skin color or nationality makes them look like a “threat.” Legislation containing a provision could allow the military to indefinitely detain a person without charge or trial has been defended in US courts by the Obama administration. And now, in “extraordinary circumstances,” the president has the authority to kill US citizens on US soil.
An example of “extraordinary” was given, but is that all? Only after a catastrophic attack? What’s extraordinary? The elasticity or vagueness of that definition would reveal much about the probability of whether the assassination of a US citizen suspected of posing a “threat” could take place in the not-so-distant future.