The President of the United States, according to Justice Department's top lawyer, reserves the right to use lethal military force against U.S. citizens on U.S. soil without judicial review or due process.
That is the content of a letter sent to Sen. Rand Paul (R-KY) by US Attorney General Eric Holder and disclosed Tuesday as part of a deal reached between the White House and members of the Senate Intelligence Committee that allowed John Brennan, nominated to head the CIA, to have his confirmation fast-tracked to the full Senate for a vote.
The letter from Holder reads, in part:
"It is possible [...] 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."
As Michael Luciano notes at PolicyMic, such a statement would possibly be "unremarkable" in the era before the rise of predator drones or if the US had not recently killed US citizens abroad without judicial review. "However," Luciano says, "Obama's clear willingness to employ drone strikes to kill individuals who aren't necessarily involved in plotting attacks at the time they become targets should give all Americans pause."
Though Holder stipulates that such authority would not "likely" occur, even his hypothetical declaration that the government could assassinate a suspected terrorist without due process will send chills down the spines of civil libertarians and human rights advocates.
And as FireDogLake's Kevin Gostzola points out, even "the circumstance where this authority is claimed is peculiar." He explains:
Holder is saying the president might use it after and not before an attack. If there was a person about to engage in a terror attack, that person might not be subject to a targeted killing, but, after the attack occurred, a person could be targeted and killed. It seems like if one was going to claim this totalitarian power they would claim the power to prevent the “catastrophic attack.”
Additionally, when America has already been attacked and the media is covering the carnage and destruction and politicians or leaders are committing themselves to retaliation or vengeful justice, the president may need to authorize the killing of some US citizen on US soil, who may have been responsible. But, remember, the attack happened. Intelligence agencies missed the fact that this person, who is now being targeted, was going to attack. What intelligence or information do they have to kill him? Is it hearsay from victims nearby the site of the attack? Did some bystander suggest the person was talking about attacking the United States? How does the US government have a target so quickly in the aftermath? Assuming “terrorists” would want to attack populated areas to create the most damage and cause the most deaths, why wouldn’t law enforcement or SWAT teams be able to be deployed to capture without using some kind of premeditated authorization to assassinate a person?
There may never be a targeted killing of a US citizen on US soil and the question of whether a US citizen could be targeted and killed on US soil may remain a hypothetical question for some time, but the fact that the Obama administration has told a US senator there is a circumstance where the government could target and kill someone, who is a citizen, on US soil without charge or trial is a stark example of the imperial presidency. It is an example of how there is, for the most power, no power to violate civil liberties or human rights the president won’t claim in order to respond to “threats” however it chooses.