Obama Can Kill Americans on U.S. Soil Without Due Process?

by Wendy McElroy
The Dollar Vigilante
Mar. 12, 2013

On March 5th, a headline in the left-leaning Mother Jones declared, “Obama Administration Says President Can Use Lethal Force Against Americans on US Soil.” A letter from Attorney General Eric Holder to Republican Senator Rand Paul was the cause. (A screenshot of the full letter is here.) Rand had written to John Brennan, the current nominee for Director of the CIA, to ask whether the president can kill American citizens through the drone strike program on US soil without due process. Brennan requested Holder to address legal aspects of the question, which Obama and his administration have hitherto refused to answer. Holder's March 4 letter may have broken the silence because Rand threatened to filibuster Brennan's nomination if there was no response. (Indeed, Rand was filibustering as I wrote this article.)

Conservatives and libertarians are enraged by Holder's letter; liberals offer a mixed reaction. An admin at the left-leaning Daily Kos site, for example, blasts Mother Jones for inaccuracy. Others claim the Presidential power is nothing new and Holder's comments are unexceptional. Teasing out the truth means deconstructing the letter.

DECONSTRUCTING HOLDER

This letter was written and vetted with meticulous care. Holder did not misstate his position. The letter's vague and non-responsive nature is deliberate and its few specifics are revealing.

Holder opens with an assurance: “[T]he US government has not carried out drone strikes in the United States and has no intention of doing so. 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.” [All words in bold are emphasis added]

Obama did not even disclose the existence of a drone program on American soil until his hand was forced; the memos upon which the program's legal authority is based remain secret. This non-transparency makes it impossible to assess Obama's intentions, and reduces Holder's position to “trust us.” The words “as a policy matter” are significant because the use of military force instead of law enforcement is dismissed strictly as policy, not on grounds of law or the Constitution. Policies change constantly and often without notice. Moreover, given the extreme militarization of US law enforcement, complete with police drones, it is strange to reassure Americans that they would be killed by law enforcement and not the military. The distinction does obviate some legal questions, however. For example, it bypasses any lingering shred of the Posse Comitatus Act, which limits the power of a President to use the federal military to enforce law.

Holder continues. The administration has “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.” Again, this is a policy statement. Moreover, various federal agencies, including the Department of Homeland Security, have identified broad categories of law-abiding Americans as potential terrorists. Gun advocates, military veterans and strict Constitutionalists place consistently high on that list. By broadening the focus to include America's “interests abroad,” Holder also signals that the Americans targeted need not be violent but merely a threat to US interests. It would be difficult to be more vague.

Holder now approaches the meat of the letter. “The question you [Rand Paul] have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront.” The statement is entirely incorrect. On February 20th, Paul asked whether Obama had “the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil and without trial.” This is a specific, real world question; it asks an Attorney General to comment on a point of federal law, which he would be or has been instrumental in forging. Holder's dismissal of Rand's question as theoretical, however, allows him to rephrase it in a form he wishes to address.

Holder's non-answer? “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.” The rephrasing allows Holder to avoid the key issue of due process. Unfortunately, few people deny the authority of a President to kill violent Americans who threaten national security. But they balk at his signing secret orders to kill Americans without arrest or a trial. Due process is being reduced to Obama's signature on a piece of paper that will never be seen.

Nevertheless, Holder is at least and at last rendering a legal opinion. Yes, under “extraordinary circumstances,” it is legal “under the Constitution and applicable laws...for the President to authorize the military to use lethal force” on American soil.

It is impossible to know what constitutes “extraordinary circumstances.” America has been in a state of war and militarization for almost 12 years since 9/11. It could refer to circumstances law enforcement cannot handle and, so, the military becomes necessary. In reality, “extraordinary” will mean whatever the administration wishes. The national emergency could be nothing more than a grassroots refusal of Americans to voluntarily surrender guns. At that point, Obama could bypass both Congress and the Constitution by invoking the War Powers Act and declare martial law.

It is also not possible to decipher which “applicable laws” are referenced. Perhaps Holder is appealing to “War on Terror” laws such as the Authorization for Use of Military Force. The latter is a joint resolution passed by Congress in 2001 to authorize the President (then Bush) to use "necessary and appropriate force" against anyone who "planned, authorized, committed or aided" those responsible for 9/11. Indeed, the words used by Holder -- “necessary and appropriate” – echo the wording of the AUMF. It is equally unclear which part of the Constitution is referenced. Certainly, it is not the Bill of Rights. This means that neither Congress nor the public will know the circumstances and legal authority under which President believes it is appropriate to kill Americans on US soil.

The two specific examples of “extraordinary circumstances” only confuse the issue further. He states, “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.”

The examples are the bombing or Pearl Harbor and 9/11. They are bizarre. For one thing, neither incident was perpetrated by Americans. Moreover, Holder endorses the Presidential execution of Americans after a crisis has occurred and not to prevent one. This differs sharply from the administration's justification for torture; namely, that information extracted in a “timely manner” may prevent the loss of American lives.

The “timely manner” aspect becomes all the more bizarre in light of Holder's concluding sentence: “Were such an emergency to arise, I would examine the particular facts and circumstances before advising the president of the scope of his authority.” Pearl Harbor occurred literally out of the blue in the early morning hours; 9/11 was equally unexpected and swift. Does anyone believe Holder thinks there would be time to “examine the particular facts and circumstances” of a surprise attack that hits like a lightning bolt? Does anyone believe Holder does not know what the administration's response would be down to the color of Obama's underwear?

CONCLUSION

The Obama administration is profoundly secretive and dishonest. Holder's letter is an exercise in obfuscation which, nevertheless, does assert the President's authority to kill Americans on US soil under undefined circumstances.

Certain other circumstances have been defined, however. Obama has already asserted the unprecedented power to kill Americans without due process when they are on foreign soil. Anwar al-Aulaqi was an American by birth and upbringing. He was executed by a drone attack in Yemen on September 30th, 2011. The grounds: suspicion of joining al Qaeda. No evidence of guilt has been presented because Obama has not released it.

It is also clear that the Obama administration is unwilling to explain the details or scope of the President's authority to kill Americans on US soil. At some point, when people consistently and persistently refuse to answer a question with “no,” a reasonable person realizes the answer is “yes.”

On March 5th, civil libertarian Glenn Greenwald summed up the situation. “There is a theoretical framework being built.” It “posits that the US Government has unlimited power, when it comes to any kind of threats it perceives, to take whatever action against them that it wants without any constraints or limitations of any kind.
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Wendy McElroy is a frequent Dollar Vigilante contributor and renowned individualist anarchist and individualist feminist. She was a co-founder along with Carl Watner and George H. Smith of The Voluntaryist in 1982, and is the author/editor of twelve books, the latest of which is "The Art of Being Free". Follow her work at http://www.wendymcelroy.com.