Moral Low Ground

Civil Liberties

Obama Administration Asserts Power to Kill Americans on US Soil without Charge or Trial

The Obama administration has officially served notice to all Americans that it has the power to kill you, in your home or anywhere in your country, without charge or trial, if it really wants to.

Responding to a query from Sen. Rand Paul (R-KY), who has been threatening to block the confirmation of John Brennan as CIA director, the Obama administration has asserted its power to kill Americans on US soil without due process of law.

Mother Jones reports that Attorney General Eric Holder replied to Sen. Paul in a Tuesday letter, affirming that the president can indeed order the use of military force against Americans in the United States in “an extraordinary circumstance.”

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. 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.

Last month, Sen. Paul threatened to filibuster Brennan’s nomination  “until he answers the question of whether or not the President can kill American citizens through the drone strike program on US soil.” Brennan responded by writing to Paul that “the agency I have been nominated to lead does not conduct lethal operations inside the United States—nor does it have any authority to do so.”

But Holder’s letter seems to raise more questions than it answers. What are the criteria for determining what constitutes “an extraordinary circumstance?” What, if any, deliberations are involved in deciding who to kill, and who participates in them?The vagueness of the administration’s response to Paul’s inquiry is also particularly discomforting.

The affirmation that the president can kill Americans on US soil without due process of law is but the latest in a string of  alarming erosions of Americans’ constitutional rights by the Obama administration.

Last December, the president signed a bill extending the FISA Amendments Act of 2008, a law allowing for the warrantless wiretapping of phone and electronic communications, through the end of 2017. FISA, the Foreign Intelligence Surveillance Act, allows the NSA and other US intelligence agencies to wiretap communications in which at least one of the parties involved is a foreigner, without first obtaining a warrant. Many critics claim this is a violation of the Fourth Amendment prohibition of warrantless search and seizure.

In December 2011, President Obama signed the National Defense Authorization Act (NDAA), which contains a provision that authorizes the indefinite military detention of American citizens without charge or trial. In September 2012, Judge Katherine B. Forrest of the US District Court for Southern New York ruled the indefinite detention provision “facially unconstitutional” and said it “impermissibly impinges upon guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.” Unfortunately, a higher court bowed to pressure from the Obama administration and affirmed the indefinite detention provision of the NDAA.

President Obama also signed the Orwellian-sounding Federal Restricted Buildings and Grounds Improvement Act of 2011, which criminalizes many forms of constitutionally protected free speech and assembly, namely protest activity.

Sen. Paul, a Tea Party favorite who is the son of perennial Libertarian presidential candidate Rep. Ron Paul (R-TX), has been a staunch opponent of FISA’s warrantless wiretapping of Americans’ communications, the NDAA’s indefinite detention provision as well as the killing of American citizens without due process of law.

“The US Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening,” Paul said Tuesday. “It is an affront the constitutional due process rights of all Americans.”

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