WASHINGTON — Can the president legally order a drone strike to kill an American on U.S. soil?
Attorney General Eric Holder wrote this week in a letter to Sen. Rand Paul, R-Ky., that he could envision “an extraordinary circumstance in which it would be necessary and appropriate” to use such lethal force.
Those words touched off a heated debate in the Senate on Wednesday over when and where the president can order the killing of U.S. citizens designated as enemy combatants.
President Obama and his aides have said that targeted killings of Americans must be governed by some due process. But they have resisted public disclosure of their rules. Until this week, the administration had refused to allow even members of the Senate Intelligence Committee to read most of the legal opinions that justified the one known drone killing of an American, the attack on Anwar al-Awlaki in 2011 in Yemen.
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The debate burst into public view on Capitol Hill. On the Senate floor, Paul filibustered the nomination of John Brennan to be the new director of the CIA, imploring colleagues to join him and criticizing Obama for refusing to categorically rule out the use of lethal force against terror suspects in this country. Brennan has been a chief architect and defender of the administration’s drone war.
“I will speak until I can no longer speak,” Paul said as he began. “I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.”
Paul, a rumored presidential hopeful in 2016, showed no sign of giving up, holding the floor for more than eight hours and continuing to talk into the night. Paul insisted he was not objecting to the use of lethal force to repel an attack but said the administration was claiming a far broader power.
As the afternoon wore on, his words appeared to have had an impact, as several Republican colleagues and Democrat Ron Wyden of Oregon joined the filibuster, delaying a final vote on Brennan’s nomination at least until Thursday.
Paul ended his filibuster early Thursday, nearly 13 hours after it began.
Paul stopped his self-described filibuster early Thursday , nearly 13 hours after it began.
The filibuster is legend and endlessly controversial in the Senate, but extended ones are relatively rare, especially in the modern-day Senate where the chamber’s rules are used more often to block legislation or to hold show votes on trivial matters. The modern filibuster usually deprives the majority of the 60 votes needed to end debate on a measure or a nomination. Brennan probably has the 60 votes to end a filibuster, which is why Paul’s filibuster required him to actually talk.
As Paul was filibustering, Holder was testifying to the Senate Judiciary Committee, where senators tried to pin him down about the limits of the power the government was claiming.
In his letter, Holder had said he hoped “no president will ever have to confront” the need to order the killing of an American on U.S. soil.
But, he added, “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.” He mentioned the attacks on the World Trade Center and the Pentagon on Sept. 11, 2001, as a possible example.
That explanation did not satisfy several members of the committee. The letter “raises many questions for citizens on when the government can kill them,” said Sen. Chuck Grassley, R-Iowa. Sen. Ted Cruz, R-Texas, demanded to know what in the Constitution gives the president or anyone else the power to kill an American terrorist suspect “sitting quietly in a cafe in the U.S.” who at that time is not posing an immediate threat.
After initially saying only that killing a suspect in that sort of circumstance would not be “appropriate,” Holder eventually told Cruz that such an attack would not be constitutional. He also said that he expected Obama to speak more publicly about the issue in the near future.
Information from The Washington Post is included.