Killing American Citizens on American Soil, Take 2
Does the president have authority to order drone strikes against American citizens on American soil? As Adam Serwer says, the reason Obama has dodged this question in the past is that the answer is probably yes. He just doesn't want to say so publicly. Today, however, in a letter to Sen. Rand Paul, Attorney General Eric Holder confirmed that the answer is indeed yes:
On February 20, 2013, you wrote to John Brennan requesting additional information concerning the Administration's views about whether "the President has the power to authorize lethal force, such as drone strike, against a U.S. citizen on U.S. soil, and without trial."
[Throat clearing about how unlikely and hypothetical the question is....]
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.
Unfortunately, this is still a bit of a non-answer. The president plainly has the authority to authorize lethal military force on American soil if the country is attacked. I don't think anybody has ever questioned that. He also has the authority to authorize lethal police force on American soil under much wider circumstances. Waco and Ruby Ridge are examples. In both of these cases, there's no reason to think that drones would be specifically barred from use even though F-15s and SWAT teams are OK.
But that still leaves open the question most of us really want answered. The problem is that it's hard to phrase it precisely. What we want to know is whether the president can specifically target a particular American citizen (or group of citizens) for assassination on American soil even when there's not some kind of hot, real-time incitement (such as an invasion or a standoff). The issue of drones is immaterial here. What we're interested in is a situation where, say, the president gets information that some sort of bad guy is holed up in a cave in Idaho. Can he order up lethal force? Or is he required to go after him in a way that at least theoretically allows the possibility of surrender?
We still don't know the answer to that question, and even if I haven't phrased it quite correctly, I'm pretty sure it's the question most of us want answered.