Under questioning by Sen. Ted Cruz (R-TX) during a Senate Judiciary Committee hearing on Wednesday, U.S. Attorney General Eric Holder agreed that it would be “unconstitutional” to kill an American citizen on U.S. soil with a drone strike — absent an “imminent threat” like a 9/11-style attack or an enemy bombardment like Pearl Harbor.
Cruz refused to accept without question Holder’s assertion that any use of lethal force would not be “appropriate” given the high probability that a terrorism suspect could be captured by law enforcement personnel instead.
Cruz asked: “My question wasn’t about appropriateness or prosecutorial discretion, it was a simple legal question. Does the Constitution allow a U.S. citizen on U.S. soil who doesn’t pose an imminent threat to be killed by the U.S. government?”
Holder seemed frustrated by the question. “I do not believe… Given all the facts that you have given me, and this is a hypothetical, I would not think in that situation the use of drone– or lethal force, would be appropriate…”
Cruz cut him off. “Attorney General, I have to tell you I find it remarkable that in that hypothetical, which is deliberately very simple, you are able to give a simple, one word, one syllable answer: ‘No.’ I think it is unequivocal that if the U.S. government were to use a drone to take the life of a U.S. citizen on U.S. soil, and that individual did not pose an imminent threat, that would be a deprivation of life without due process.”
They went back and forth, basically agreeing that lethal force would not be used in such a circumstance, but Cruz grew more outraged by the second at Holder’s persistent use of the word “appropriate.” Finally, Holder said, “Let me be clear: Translate my ‘appropriate’ to ‘no.’ I thought I was saying no, alright?”
“Well, I am glad,” Cruz replied. “After much gymnastics, I am very glad to hear that it is the opinion of the Department of Justice that it would be unconstitutional to kill a U.S. citizen on U.S. soil if that individual did not pose an imminent threat. That statement has not been easily forthcoming.”
However, the Bush administration seriously considered using the military in a domestic law enforcement capacity in 2002, in a plan that would have sent troops to swoop in on several men in Buffalo, New York who were suspected of hatching a terrorist plot. They ultimately decided against it, even though legal experts say the congressional authorization of the use of military force is without borders and includes U.S. soil.
Holder himself admitted as much in his letter to Sen. Rand Paul (R-KY) earlier this week, writing: “It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws… for the President to authorize the military to use lethal force within the territory of the United States.”
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