Attorney General Eric Holder before Senate Judiciary Committee on March 6 (Screen shot from C-SPAN)

The nomination of John Brennan to the position of CIA director is currently being held up by a filibuster being led by Republican Senator Rand Paul of Kentucky. He has been joined by Republican Senator Ted Cruz of Texas, Republican Senator Mike Lee of Utah and even Democratic Senator Ron Wyden to ask “questions” of him as he filibusters.

Much of the motivation for standing on the Senate floor for the past hours has to do with the fact that Attorney General Eric Holder has declined to say outright that targeting and killing a US citizen suspected of plotting a terrorist attack on US soil, who did not pose an imminent threat, would be illegal. Paul submitted three letters and finally on March 5 Holder gave him an answer. However, it did not rule out the use of drone strikes and say this would be unconstitutional.

Holder appeared before the Senate Judiciary Committee this morning and was asked by Cruz about his response to Paul:

CRUZ: In your response to Sen. Paul yesterday, you suggested there may well be circumstances in which it is permissible to use drones to target a US citizen on US soil. I’d like to explore those circumstances and in particular you pointed to two. You pointed to Pearl Harbor and 9/11, both of which were extreme military attacks on the homeland.

I want to ask a more specific question: if an individual is sitting quietly at a café in the United States, in your legal judgment does the Constitution allow a US citizen on US soil to be killed by a drone?

HOLDER: For sitting in a café and having a cup of coffee?

CRUZ…If that individual is not posing an imminent and immediate threat of death or bodily harm, does the Constitution allow a drone to kill an individual?

HOLDER: On the basis of what you said, I don’t think you can arrest that person.

Instead of addressing the question, which a reasonable person would likely understand, Holder chose to be difficult with Cruz because it was not phrased particularly well.

Cruz continued:

CRUZ: The person is suspected to be a terrorist. You have abundant evidence he was a terrorist. He was involved in terrorist plots. But, at the moment, he is not pointing a Bazooka at the Pentagon. He is sitting in a café. Overseas, the United States government uses drones to take out individuals when they’re walking down a pathway or when they’re sitting at a café. If a US citizen on US soil is not posing an immediate threat to life or bodily harm, does the Constitution allow a drone to kill that citizen?

HOLDER: I would not think that would be an appropriate use of any kind of lethal force. We’d deal with that in a way that we typically deal with a situation like that…

CRUZ: …With all do respect, Attorney General Holder, my question wasn’t about appropriateness or prosecutorial discretion. It was a simple legal question. Does the Constitution allow a US citizen on US soil who doesn’t pose an imminent threat to be killed by the US government? [emphasis added]

Holder maintained it would not be “appropriate.” He would not say it was legal or illegal or that it was constitutional or unconstitutional.

HOLDER: I do not believe that —Again, you have to look at all of the facts. On the facts that you have given me—and this is a hypothetical, I would not think that in that situation the use of a drone or lethal force would be appropriate because…

CRUZ… I find it remarkable that in that hypothetical, which is deliberately very simple, you are unable to give a simple one-word one-syllable answer “no.” I think it is unequivocal that if the US government were to use a drone to take the life of a US citizen on US soil and that individual did not pose an imminent threat that would be a deprivation of human life without due process…

HOLDER:.. Let me. Maybe I’m not being clear. I said that the use of lethal force. And I’m saying drones, guns or whatever else would not be appropriate in that circumstance.

CRUZ: You keep saying inappropriate. My question isn’t about propriety. My question is about whether something is constitutional or not. As Attorney General, you’re the chief legal officer of the United States. Do you have a legal judgment on whether it would be Constitutional to kill a US Citizen on US soil in those circumstances?

HOLDER: A person who is not engaged, as you described—This is the problem with hypotheticals. But the way in which you have described this person sitting at a café not doing anything imminently the use of lethal force would not be appropriate, would not be something…

CRUZ:… I find it remarkable that you won’t give an opinion on the constitutionality

HOLDER: …Let me clear. Translate my appropriate to no.

When Holder said, “Translate my appropriate to no,” he was flustered at the fact that Cruz had pressed him. It was only under pressure that he finally gave a clear and simple answer. And Cruz told Holder he was “very glad to hear that it’s the opinion of the Department of Justice that it would be unconstitutional to kill a US citizen on US soil if that individual did not pose an imminent threat.” He added, “I wish you had given that statement in response to Sen. Paul’s letter asking you it.”

Holder claimed his answer was, “Totally consistent with the letter I sent to Sen. Paul. I talked about 9/11 and Pearl Harbor. Those are the instances where I said it might possibly be considered. Other than that, we would use our normal law enforcement authorities in order to resolve situations along those lines and then use the normal things you use when you decide if cops can shoot somebody.” In finally saying drone strikes would not be legal or constitutional in this hypothetical, it appears he suggested that it might be legal to use lethal force that did not involve armed drones.

On the Senate floor, Cruz reflected on the fact that both President Barack Obama and Holder have both declined to unequivocally state that using lethal force on US citizens on US soil, such as a drone strike, would be illegal or unconstitutional.

“I find it quite puzzling,” that Holder did not respond, “‘Of course not. Of course we can’t. We never have in the history of this country. We never will. The Constitution forbids it.’” He said, “In my understanding of the Constitution, that was not a difficult question that you asked and I find it quite remarkable that they treated it as a difficult question.”

The hypothetical he raised with Holder during the hearing was outlined again for Paul to address. And Paul responded:

PAUL: First aspect of the question is, what is the president thinking? Why would the president not respond to us? Why would the president not answer an easy question and say that non-combatants will not be killed with drones? I think the reason is complicated and it’s conjecture because I can’t get in his mind but I would say it is sort of a contagion that affects Republicans and Democrats when they get into the White House. They see the power of the presidency is enormous. They see themselves as good people and they say I can’t give up any power because I’m going to do good with that power. The problem they don’t see is that the power is intoxicating and that the power some day may be in the hands of someone else who is less inclined to use it in a good way and I think that’s why the power grows and grows because everybody believes themselves to be doing the right thing. [emphasis added]

Except, the Obama administration was well aware that this power could fall into the hands of someone “less inclined to use it in a good way.” They started to formulate a rule book in case Mitt Romney was elected president.

This is critical, however, and highlights why there is an imperial presidency. It points to why the president has claimed the authority to execute persons abroad, including US citizens, who are away from a hot battlefield. It also gets at why the president and the Justice Department will not unequivocally state this is illegal. Outright stating the use of drones domestically on US citizens would undermine the framework for waging permanent war against terrorism that the Obama administration and the administration of President George W. Bush have constructed.

When Republican Senator Pat Toomey of Pennsylvania asked him for a summary and clarification of why he was filibustering, Paul said he believed Holder had actually said it was unconstitutional at the end of his answers to Cruz’s questions. He just wanted a clear statement from Holder or the Justice Department that there is no legal or constitutional authority that would allow for drone strikes against US citizens, who don’t pose an imminent threat, on US soil. But the Obama administration won’t clearly state he has no authority to kill US citizens and deprive them of their Fifth Amendment rights to due process. That is the issue and one worth pressing the administration on because the circumstances, which the administration thinks it has the authority to wield such a power, should not be vague, unclear or secret.