Executive Power

Holder's Worrisome Assurances About the President's Power to Kill Suspected Terrorists


Senate Judiciary Committee

How hard would it be for the White House to say, in response to Rand Paul's probing and important questions about the president's license to kill, that the government does not have the authority to use lethal force against a suspected terrorist within the United States—regardless of his nationality—unless doing so is necessary to prevent him from killing innocent people? It would be quite easy, compared to the absurd evasions and red herrings the White House has offered so far. Hence the suspicion that President Obama wants to leave open the possibility of ordering a domestic hit if he thinks it's "appropriate," as Attorney General Eric Holder might put it. The administration's assurances so far leave some pretty big loopholes.

In his March 4 letter to Paul, Holder told the Kentucky senator "the U.S. government has not carried out drone strikes in the United States and has no intention of doing so." But he added that "in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001," he "would examine the particular facts and circumstances before advising the President on the scope of his authority." That phrasing suggests Holder is not talking about using force to defend against an attack, which clearly would be justified. If a plane were about to crash into the Capitol or the White House, there would be neither the need nor the time to "examine the particular facts and circumstances before advising the President on the scope of his authority." So what was Holder imagining when he raised this possibility? Only he knows for sure.

When Holder testified before the Senate Judiciary Committee yesterday, Sen. Ted Cruz (R-Texas) asked him a straightforward question: Is killing a suspected member or ally of Al Qaeda on U.S. soil constitutional if he does not pose an immediate threat of violence? Since the Justice Department says it is legal to kill such people in other countries, and since it ties this power to the Authorization for the Use of Military Force that Congress approved after 9/11, which it says includes no geographic limits, Cruz's question was perfectly reasonable. Yet Holder repeatedly dodged it, to the point that Cruz gave up on getting a straight answer, complaining that Holder kept talking about the propriety of using deadly force against a suspected terrorist who is just "walking down a path" or "sitting in a café" (as in Cruz's hypothetical) instead of its constitutionality. At the very end of the exchange, Holder made a confusing statement that Cruz interpreted as a concession: "Translate my 'appropriate' to no. I thought I was saying no." No to what was not clear, since Cruz had phrased his question several different ways.

In his two-sentence letter to Paul today, Holder writes: "It has come to my attention that you have now asked an additional question: 'Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?' The answer to that question is no." Earlier today Brian Doherty noted that "engaged in combat" is ambiguous, especially because the Obama administration argues that the people it identifies as members or allies of Al Qaeda are engaged in combat even when they are driving down the street or sitting in their homes, far from any active battlefield. Furthermore, the question Holder chose to answer is restricted to targeted killings using "weaponized drones," leaving open the possibility that other methods could be used, and it applies only to U.S. citizens, leaving open the possibility that immunity from summary execution in this country hinges on nationality. 

Parsing Holder's statements this way may seem far-fetched, but he should not be allowed any wiggle room, given the way the administration has twisted language to justify what looks like assassination as an act of self-defense. In its white paper on targeted killings, for instance, the Justice Department redefines "imminent threat" so that it means no more than an asserted association with Al Qaeda or an allied group. As Sen. Mike Lee (R-Utah) noted at yesterday's hearing, "the white paper goes so far as to suggest that imminence doesn't really need to involve anything imminent," since its definition "does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."

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  1. Holder says it depends on what your definition of “is” is.

    1. Holder says it depends on what his definition of “fuck you” is.

      1. Holder says it doesn’t matter WHAT “your” definition is…

    2. Do you know what you are?
      You are what you is
      You is what you am, a cow don’t make ham
      You ain’t what you’re not, so see what you got
      You are what you is and that’s all it is

      A foolish young man of the Negro Persuasion
      Devoted his life to become a Caucasian
      He stopped eating pork, he stopped eating greens
      He traded his dashiki (“Uhuru!”) for some Jordache Jeans
      He learned to play golf and he got a good score
      Now he says to himself, “I ain’t no nigger no more”

      – FZ

  2. I’m confused. Are we supposed to feel all better now that the administration says it won’t use drones in the U.S.?

    Another point I’m confused on: a drone is a tool/tactic. What’s the difference between a drone killing someone without due process, and a CIA agent killing someone without due process?

    1. I don’t think you should feel better about it, I know I don’t. It was just another weaselly reply to get Rand to shut up already.

    2. Drones don’t kill people; people kill people.

      There are two reasonable questions at this time, and they are quite distinct.

      1) Can the State be trusted to operate drones in American airspace? (“Hell No” seems a fairly reasonable answer to me, but there are reasonable arguments for limited operations of drones.)

      2) Does the Constitution authorize the President and/or his agents to be prosecutor, judge, jury, and executioner? (“Hell No” is the only reasonable answer.)

    3. Only if it’s James Bond 007 with a license to kill, that is operating the Drone.

  3. For my law school graduation a bunch of students walked out because Rob Portman, Sen. from Ohio, was the speaker and he supported DOMA. The year after this piece of shit Holder was the commencement speaker, and no-one outside the Fed Soc so much as complained. He’s such a weasel, and no-one seems to really care.

    1. Nice, we had lindsey graham…

      1. Oil industry lawyer, yay Texas!

      2. G W Bush.

      3. Sam Donaldson.

    2. I had Hillary. In 2009.

      As you could imagine, the speech was primarily about how great she is.

  4. “Since the Justice Department says it is legal to kill such people in other countries, and since it ties this power to the Authorization for the Use of Military Force that Congress approved after 9/11, which it says includes no geographic limits, Cruz’s question was perfectly reasonable.”

    The presidents have had a blank check for 12 years already. It’s just not 2001 anymore.

    Let’s get rid of edit the AUMF already.

    Even if they just added a sunset clause to it, that would be an improvement.

    1. “Even if they just added a sunset clause to it, that would be an improvement.”

      It’s bad enough that there are no geographic boundaries, and that the only criteria for being a legitimate target is the president’s own discretion. Why parlay that mess into making it forever and always, too?

      Give the damn thing an expiration date, at least.

    2. “In a post-911 world….”

      Why do you want the terrrrrsszts to win, Ken?

    3. As I’ve said before, I think the AUMF as currently written is unconstitutional. Congress can’t repeal the Fifth Amendment by giving the president the power to kill someone as long as he deems them a member of an (by its nature) ill-defined terror group, regardless of imminence of threat, proximity to a battlefield or real war zone, feasibility of capture, in a “war” that by its very nature is endless, etc. all without any oversight or accountability.

      1. It take the president’s war powers as Commander in Chief and sets them up against some other constitutionally protected liberties.

        I don’t know where the Supreme Court would land on that one, but I know that after the individual mandate, I wouldn’t trust them to get anything right.

        So, rather than hope that the Supreme Court will do what Congress won’t, I say we just skip to the part where we get rid of or edit the AUMF.

        Even if they just went for another ten years–and sunset it then! That would be better than what we’ve got. And if they want to add something to it that says the president can’t use the AUMF to target American citizens inside U.S. borders, then that would be even better still.

        I just don’t have much faith in the SC to solve our legislative problems. I know they’re supposed to fix it when Congress and the president can’t bring themselves to do the right thing, but then sometimes we go to them as Plan C, and they just give us the Dredd Scott decision.

        Last thing we need is for the SC to affirm the president’s right to target American citizens with drones–as part of his job as Commander in Chief.

        1. Oh I agree with you, the Supreme Court isn’t going to do shit. I wasn’t suggesting that’s the solution. Something doesn’t actually become constitutional just because the SC deems it so. If I were given the power to rewrite the Constitution, I would make it mandatory that declarations of war or authorizations of military force be renewed on an annual basis to stay in effect.

  5. Why parlay that mess into making it forever and always, too?

    I think the term of art is, “Fuck you, that’s why”.

  6. So in essence, the Weaver family (Ruby Ridge) were combatants. They knew some people who were associated with a group that the government had loosely deemed to be persons of interest. This group was not overly thrilled with the US Government (who is?), and had weapons (who in the mountains doesn’t?).

    So by the standards laid out in the white paper, there’d be no reason to rule out sending a hellfire missiles flying at the Weaver cabin.

    1. Would have been a lot cleaner than all that climbing about the mountains and sneaking up on the house and shit.

      DRONE! BOOM!

      Done. Me like.


    2. Yes. Same with Waco. Why send in agents and put their lives on the line, when you can send in a drone and just blow the fuck out of the place in one, quick, easy operation?

      Saves time, money, and lives.

      1. The Waco fire is when I realized my political beliefs were too tepid and I wasn’t nearly radical enough to differentiate myself from the immoral masses who found that action to be acceptable.

        1. Waco is when I finally completed my philosophical evolution into AnCap.

  7. Exactly. BarryD, you are one of the few who can see through the Muslim meme. An individual is an individual. Even when you sell out to a cause, cult, or identy, you are still an individual that deserves due process.

  8. Now thats the SMACK down I am taliing about


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