Attorney General Eric Holder has officially informed Sen. Rand Paul that under extraordinary circumstances President Barack Obama has the power to kill U.S. citizens with drone strikes on American soil. Believe it or not, Holder is right, and Paul is wrong.
Yes, I’m serious.
This is a follow-up to a story Breitbart News published on Feb. 6 about the drone strike policy. After recent news reports and Paul’s interview on Hannity, this issue is heating up and it becomes more important for those who would support the Constitution to understand what the Supreme Law of the Land requires here.
Outspoken libertarian Paul has pressed Holder on whether a president—any president, not just Obama—could ever use lethal force against American citizens without a court warrant.
Finally, Holder has said the answer is, “Yes.” He’s right.
Paul disagrees, and has separately said that federal courts should be involved whenever lethal force is used against Americans. He’s wrong.
As I explained in my previous column, the Founding Fathers made the Bill of Rights a set of protections you have in the criminal justice system, when law enforcement and prosecutors charge you with a crime. You are presumed innocent, have the right to face your accuser, have a jury trial, the government must prove every element of the crime beyond a reasonable doubt, etc.
Involving courts and rules of evidence in war-fighting is suicide. And it would be an unconstitutional infringement on the president’s Article II commander-in-chief power in the Constitution. It would also cost innocent American lives, and allow many deadly enemies to walk free to attack us again (as many Gitmo detainees have done on foreign battlefields).
Two hundred years of Supreme Court precedent makes clear the Bill of Rights and the writ of habeas corpus do not apply to our military fighting enemies of the United States. That is an issue of foreign policy, outside the power and the Constitution’s role of the courts. While this power exists almost exclusively on foreign soil, it is conceivable that someone could become, for example, a radical Islamic jihadist warrior who becomes a traitor to this nation, hides here in the United States, and begins launching terrorist attacks.
Even then, the best thing to do would be to capture him. It’s always better from a policy perspective to capture an American citizen so that there is no question clouding the government’s actions, and our federal agents are excellent at what they do. If you can capture him, then do it.
But under extraordinary circumstances—if you had a “ticking time bomb” scenario where you knew the treasonous terrorist’s location but an attack was imminent and there was literally no time to get agents in place for an arrest before the attack occurs—such as in a remote location far from any town or city—the president could use any means to neutralize that imminent threat.
But if abused, this power could be used to assassinate innocent Americans. How can that be prevented? There are two important checks that must be employed before any president uses this very broad, very disturbing power.
First, these must be military operations, not intelligence operations. The rigid chain of command structure in the military allows for greater accountability. Any such operation would fall under the jurisdiction of NorthCom (Northern Command). NorthCom is headquartered at Peterson Air Force Base in Colorado Springs, Colorado. Like all of the unified military commands, it is under a four-star general or admiral who answers to the secretary of defense, who in turn answers to the president.
If these are NorthCom operations, there will be no question that the head of the command received his orders directly from the president or the defense secretary. Also all flag officers (one-star brigadier generals or rear admirals, and above, up to the four-star ranks) are Senate-confirmed, meaning that whichever senior officers are involved—including the commander and deputy commander of NorthCom—could be called by Congress to testify under oath to explain each lethal action taken, and what information made it necessary.
Second, the president himself must order the action, along with a file of the classified intelligence upon which his decision was based--a file that House and Senate oversight committees could obtain to verify that this truly was an extraordinary situation where an American traitor was endangering the lives of innocent Americans. So there would still be oversight, just not by the courts.
The military is full of honorable men and women, and so is the intelligence community. Like many other lawyers in Washington, D.C., even as a private citizen I know plenty of people who work in the Pentagon, or at the CIA, or the other security and intelligence agencies. The vast majority would never be involved in using lethal force to assassinate political opponents or the other scenarios being talked up on the Internet about the power Holder is describing to Paul.
Coupled with the threat of congressional investigations, with the courts then having a legitimate role in terms of forcing disclosure of necessary information to confirm the facts, requiring such operations to go through the military should prevent the terrifying possibility of a president--any president--ever abusing this power.
Paul also says this violates the Posse Comitatus Act. He’s wrong again. That federal law does not permit the military to engage in domestic police actions. But it does not prevent the military from acting as the military--launching a military strike, not a law-enforcement operation--under the orders of the president. (The president can also invoke the Insurrection Act under certain circumstances.)
But Sean Hannity was right in focusing on the hypocrisy here. Obama’s new position represents a 180-reversal of what he said as a candidate. If that was truly his view, then his administration should hold to it now.
Part of what scares so many people about this power is that it involves a man who cavalierly breaks his promises that his critics question his principles. It is a president’s principles—his character and integrity—that restrains his power on a daily basis.
Justice Robert Jackson famously wrote in a Supreme Court case that the Constitution is not a suicide pact. That’s why a president has this power if the alternative is the deaths of innocent Americans. But the Constitution also imposes the strictest of limits on a president; to the extent a president embraces his oath to preserve, protect, and defend the Constitution, citizens can be confident in their commander-in-chief.
But with Barack Obama, given his long record of abuses and power grabs, his demonizing and intimidating of opponents, and casting them as enemies rather than the loyal opposition, many people just don’t trust this imperial president to wield this power of life and death. That’s why this story is so controversial.
Breitbart News legal columnist Ken Klukowski is a fellow with the American Civil Rights Union.