Holder: In 'Extraordinary' Circumstances, the President Has the Authority to Order the Killing of Americans on US Soil

Posted: Mar 06, 2013 10:06 AM

Sen. Rand Paul demanded an answer, and now he's got it.  Via Left-wing magazine Mother Jones:

Yes, the president does have the authority to use military force against American citizens on US soil—but only in "an extraordinary circumstance," Attorney General Eric Holder said in a letter to Senator Rand Paul (R-Ky.) Tuesday. Last month, Paul threatened to filibuster the nomination of John Brennan, Obama's pick to head the CIA, "until he answers the question of whether or not the President can kill American citizens through the drone strike program on U.S. soil." Tuesday, 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." Brennan said that the Justice Department would answer Paul's question about whether Americans could be targeted for lethal strikes on US soil. Holder's answer was more detailed, however, stating that under certain circumstances, the president would have the authority to order lethal attacks on American citizens. The two possible examples of such "extraordinary" circumstances were the attack on Pearl Harbor and the 9/11 terrorist attacks. An American president order the use of lethal military force inside the US is "entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront," Holder wrote.

We first learned of the administration's legal rationale for its drone policies last month, when a leaked memo was reported by NBC News.  It stated that under some circumstances, high ranking US officials could unilaterally execute American citizens abroad who had taken up arms against America. This was not a hypothetical scenario: Terrorist cleric and American citizen Anwar Al-Awlaki was killed in a drone strike in Yemen last year; his teenaged son, also a citizen, was slain in a subsequent attack.  Although the memos were convoluted and the general concept is somewhat discomfiting, there's ample precedent for our government treating certain citizens as enemy combatants in a time of war.  Critics of President Obama's expanded drone policy have since demanded to know whether the administration believes the same standard applies to an American citizen here at home.  The Attorney General's new analysis, described above, confirms that they do -- albeit only in "extraordinary" circumstances.  Holder emphasized that this presidential prerogative is "entirely hypothetical," and not likely to be tested.  I suspect that caveat will come as cold comfort to civil libertarians, but aside from the dark novelty of the drone element, is this really terribly shocking?  Law enforcement officials already have the authority to use lethal force to prevent imminent harm to innocents.  Cops shoot spree killers and hostage-takers with some regularity, so why wouldn't that also apply to a US citizen on the brink of committing an act of terrorism against his fellow countrymen?  Perhaps the difference is rooted mostly in perception; "domestic drone strikes" certainly has a very creepy Orwellian ring to it.  I also don't think Holder helped his case by listing 9/11 and Pearl Harbor as relevant illustrations of his definition of "extraordinary," as both of those attacks were carried out by foreign nationals.  Setting aside the legality of this program and its practical merits for a moment, let's consider the politics of this latest disclosure -- after all, a former Obama administration official has recently divulged that the White House obsesses over public opinion and partisan gamesmanship when crafting foreign affairs and national security policy:

Vali Nasr, a university professor who was seconded in 2009 to work with Richard Holbrooke, Mr Obama's special envoy to Afghanistan and Pakistan, records his profound disillusion at how a "Berlin Wall" of domestic-focused advisers was erected to protect Mr Obama. "The president had a truly disturbing habit of funneling major foreign policy decisions through a small cabal of relatively inexperienced White House advisers whose turf was strictly politics," Mr Nasr writes in The Dispensable Nation: America Foreign policy in Retreat.

Rand Paul's filibuster threat against John Brennan's nomination to head up the CIA likely contributed to Team O's decision to finally answer his question, but one wonders if they would have done so in the absence of polling data like this:

That's astoundingly close to a 50/50 split -- fairly evenly distributed along party lines -- on whether or not the US government should be able to use a lethal domestic drone strike to eliminate a *US citizen* suspected of being a terrorist.  Suspected.  When the question is refined to ask if the president should be allow to order such executions "on his own," the numbers crater to 2-to-1 opposition.  (Surprise: Democrats, those famously principled foes of expansive war powers and the unitary executive under Bush, are most likely to back the concept, which repulsed Republicans and Independents by equally wide margins).  Again, though, the questions in this poll were about suspected citizen terrorists on American soil.  Maybe the White House figures that in a slam-dunk, truly extraordinary hypothetical case, the public would throw a party for any president who effectively pushed the button to liquidate someone who was about to detonate a dirty bomb in an American city.  In such a case, they'd probably be right.  But yeah, headlines about this will look bad, and those who are already inherently suspicious of the federal government's power won't sleep more soundly tonight.  

Parting thought: I'd love for Holder to be asked why waterboarding a (living) foreign, high-ranking leader of Al Qaeda in order to extract actionable intelligence from him is beyond the pale and illegal, but droning a US citizen (no matter how dangerous) here at home is within the theoretical limits of presidential authority.  I'll wait.

UPDATE - Rand Paul is pulling an old-school filibuster on the Brennan nomination over this.