Last month Sen. Rand Paul (R-Ky.) threatened to block the nomination of John Brennan to director of the CIA unless President Obama answered the question of whether he believed he had the power to authorize targeted killings of U.S. citizens on American soil. On Monday, Paul got an answer from U.S. Attorney General Eric Holder.
In a letter addressed to the senator, Holder wrote,
"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."
However, Holder went on to note that under certain circumstances, the president reserves the right to target U.S. citizens for due process-free killings:
"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."
Before the era of predator drones, such a statement might be considered unremarkable in that most Americans would accept some "extraordinary" action in a classic "ticking time-bomb" scenario. However, 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.
In a leaked Department of Justice memo obtained and reported by NBC News in February, the administration's legal justifications were made explicit and public for the first time. The memo said that suspects — including U.S. citizens — could be subjected to killing if "an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the US."
Of course, the determination would take place in total secrecy and entirely within the executive branch without any legislative, or more importantly, judicial oversight whatsoever.
On Tuesday, John Brennan's nomination was approved by the Senate Intelligence Committee 12-3. Brennan has said that the CIA, which is chiefly responsible for operating the country's predator drone program, has no authority to carry out strikes against American citizens on U.S. soil.
Although Holder qualified his remarks by saying the administration "has no intention" of reversing course on this issue, the utter lack of transparency with which the administration conducts the drone program makes it difficult to gauge how it defines an "extraordinary circumstance." Given that the White House does not provide information about the targets of drone strikes to the public, and given the fact that until recently it refused to even acknowledge the existence of the drone program, it is incredibly difficult — if not impossible — to know under which circumstances the Obama administration would consider targeting an American citizen for assassination on U.S. soil.