This is a question we have discussed repeatedly over the past few weeks. To be clear, the Justice Department has explicitly stated that its newfound power to assassinate American citizens is only to be used outside the United States’ borders. However, its legal justification for distinguishing between inside of border and outside of border, left me wanting.
The official U.S. policy on drone assassinations, of American citizens, on American soil is that the government is prevented from doing so by the citizen’s due process rights.
However, Eric Holder’s most recent comments lead to new questions. In a recent statement, Holder stated that “the US government has not carried out drone strikes in the United States and has no intention of doing so . . . we [also] reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat.”
Holder goes on to state that, “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 like a catastrophic attack like the ones suffered on December 7, 1941 and September 11, 2001.”
Like Mr. Holder, I believe that the President would have had the power to order that the 9/11 hijackers be assassinated, even if they had been American citizens. The police power can be broadly used at home to stop crimes while they are being carried out. To be clear, that would not be assassination, it would be self-defense or preventing the commission of a crime.
But when American citizen, al-Awlaki was assassinated, he did not present any more of an imminent threat than a criminal planning out a crime days, weeks, or months ahead of time. Al-Awlaki wasn’t killed while he had his finger on the trigger of a nuclear missile or as he was about to explode a suicide bomb on a crowded bus. Our government tracked him down when he was far away from any American would-be-victims and killed him. The threat he posed wasn’t imminent in the commonly used vernacular or understood legal definition of the word. He was in no position to kill in the next few seconds, minutes, or hours. There was time to arrest him and give him his constitutionally guaranteed trial.
Thus, my concern is that because the Obama/Holder/Brennan trinity ordered the killing of a man that wasn’t an imminent threat, the same justification could be used here at home.
As blogger “Allahpundit” of hotair.com explains, “Imagine the feds get a tip that there’s an 18-wheeler packed to the brim with explosives by Al Qaeda and headed for New York City. They can get a drone there to intercept it on the outskirts, before it enters a densely populated area, but they’re only 75 percent sure of their intel. What does [the President] do, hold off and hope that the cops get there before the bomb goes off or err on the side of neutralizing a mega-attack by firing a missile at the cab and hoping the intelligence is right?”
I’m not sure that having the CIA help determine whether to kill Americans outside of NYC is the best policy.
The fact that Holder is eager to carve out an exception for American soil makes me uncomfortable. Everyone accepts that the President can order the military to protect the American people in the midst of an attack. But these additional, alternative and arbitrary guidelines bother me.
I’m even more on edge with the revelation of a poll showing that over 40% of R’s and D’s would feel comfortable with the assassination of an American citizen on our own soil without a trial. Tomorrow, the Senate will likely confirm John Brennan to head the most covert organization in the world. This is a fight we have to take up now before it’s too late. No American should ever be assassinated on American soil. We should not only force politicians and more importantly – bureaucrats to accept this, we should also make people like Holder define the parameters of situations here at home that he believes provide exceptions to the Constitution.