Can the President Kill a U.S. Citizen in the U.S. Without Trial? Attorney General Says Yes

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Like many lawyers might, he used three paragraphs rather than just the one word, but that's what he said.

For a while now the administration has been refusing to answer this question one way or the other, which anyone with half a brain knew almost certainly meant "yes." But in a letter dated March 4, the Attorney General finally responded to Senator Rand Paul's question whether "the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial." Sen. Paul actually asked John Brennan that question, but Brennan couldn't or wouldn't answer it during the hearings on whether he should be the next head of the CIA. (That also meant "yes.") Now Eric Holder has answered it for him.

Here's his letter, which is not that long and which you should read in full if you don't hate Freedom:

Dear Senator Paul: 

On February 20, 2013, you wrote to John Brennan requesting additional information concerning the Adminìstration’s views about whether “the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial."

Here comes the answer! Ooh! I'm having a Constitutional Moment!

As members of this Administration have previously indicated, the U.S. government has not carried out drone strikes in the United States and has no intention of doing so.

Uh, let me just interrupt again here to point out that this is not a "no." And that's not good. Oh, well, go on:

As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront. It is possible, l suppose, to ìmagine 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.

Were such an emergency to arise, l would examine the particular facts and circumstances before advising the President on the scope of his authority.


                            Eric H. Holder, Jr.
Attorney General

Well, the word "no" does appear in that letter, but only as part of the phrases "no intention of doing so," "we hope no President will," and "no choice," none of which are really what I was looking for there. In fact, they are the opposite of "no."

Just to review, the Attorney General just said yes, the President does have "the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial." That's funny, because I'm looking at some amendments here (I'm thinking IV, V, VI, and VIII) that say he doesn't.

Has it even occurred to them that using lethal force against a U.S. citizen in the U.S. without trial would have done nothing to prevent Pearl Harbor or September 11, and would have been an unnecessary response to either?

Also, Brennan's nomination was just approved 12-3 by the relevant committee, so that's a good sign too, for drone aficionados.

Update: Looking at that letter again, I see that Holder carefully left out "U.S. citizen" from the operative sentence, and actually said only that the President could authorize "lethal force within the territory of the United States." Well, he was asked flat-out about using force against "U.S. citizens," and (at best) chose to avoid the question again. To me that is still a "yes."

Update Update: A reader makes the fair point that as to September 11, you could argue that "using lethal force against a U.S. citizen" would have been justified to shoot down one or more of the planes. But while that would result in the death of citizens, I don't think it would be using force "against" a citizen in the way Sen. Paul, for example, was using that word (and the passenger's right to a "trial" would not be relevant either). Better argument: the use of force in defense of a third party is justified anyway, so there would probably be little question that the President—or anyone else who has an air force—would be acting legally in that situation. But the context of the whole debate right now is the use of drone strikes to (more or less) target specific bad guys who are deemed to pose a (more or less) "imminent" threat. For that reason, too, I doubt Holder had the shoot-down situation in mind, but this is a fair point.

Pearl Harbor? Anyone?