BY T.J. GREEN — A recent letter by U.S. Attorney General Eric Holder provides new information about the legal reasoning behind the President’s authority to use drones as a weapon within the U.S. According to Holder, the Obama administration believes it could technically use military force to kill a U.S. citizen located on American soil in an “extraordinary circumstance” but has “no intention of doing so.” The Attorney General’s March 4th letter was disclosed by Sen. Rand Paul (R-Ky.), who had asked whether the Justice Department believed President Barack Obama had the legal authority to order a targeted strike against an American citizen within the United States.
The debate over constitutional limits on drone strikes is centered around the constitutional notion of due process, and whether the Fifth Amendment will operate as a restraint upon the executive branch’s profoundly controversial decision to kill an identified individual–especially a U.S citizen–without even bringing criminal charges, let alone getting a guilty verdict and a court-imposed sentence of death. Without a transparent decision-making matrix, lawmakers are concerned vague legal boundaries could raise the risk of the executive branch authorizing the deaths of American civilians otherwise protected by the Constitution.
Whether the President has the authority to use drones as a weapon within the U.S. reached a fevered pitch March 6th and 7th with Senator Paul spearheading this debate in a nearly 13-hour speaking marathon on the Senate floor. Speaking on the Obama administration’s policy on lethal drone strikes, Senator Paul stated, “The president still needs to definitively say that the United States will not kill American non-combatants. The Constitution’s Fifth Amendment applies to all Americans; there are no exceptions. … I hope my efforts help spur a national debate about the limits of executive power.”
According to Holder, the Obama administration has rejected the use of military force where “well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat.” Theoretically, however, it would be legal for the president to order such an attack under certain circumstances, Holder said. “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, 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 9/11 and Pearl Harbor, Holder continued.
Furthermore, White House Press Secretary Jay Carney stated, “The president has not and would not use drone strikes against American citizens on American soil. On the broader question, the legal authorities that exist to use lethal force are bound by and constrained by the law and the Constitution. The issue here isn’t the technology. The method does not change the law. … Whether the lethal force in question is a drone strike or a gun shot, the law and the Constitution apply in the same way.”
