Eric Holder has finally answered a question that has been on the minds of Senator Rand Paul and pretty much everyone who doesn’t feel comfortable about the federal government’s unchecked power to drone American citizens on foreign soil instead of capturing them and giving them a trial: Can it also do that to American citizens on American soil? The answer, in Holder’s opinion — as expressed in a letter to Paul — is yes, in limited, extreme cases:
As members of this administration have previously indicated, the 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. We have 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.
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 December 7, 1941, and September 11, 2001.
Paul was not pleased by the letter, saying in a statement that the “U.S. Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening - it is an affront the Constitutional due process rights of all Americans.”
But how is it not a given that the government reserves the right to use lethal force on its citizens, on American soil, in the midst of a terrorist attack? Does anyone doubt that, for example, the president would have the power to shoot down a plane being flown toward a skyscraper by an American citizen?
Of course, there are many other situations that aren’t as clear-cut as an in-progress, catastrophic terrorist attack, and, currently, there are no checks on the president’s power to eschew law enforcement and the criminal-justice system in favor of a lethal drone strike on an American citizen. That’s a problem.