March 6, 2012 — -- It is not okay for the federal government to launch a drone strike to kill Americans at cafés on U.S. soil. That, according to Attorney General Eric Holder, would be unconstitutional.
Holder made the determination in response to a hypothetical scenario posed by Sen. Ted Cruz (R-Texas) at today's Senate Judiciary Committee hearing. Cruz was questioning Holder about a letter the Attorney General wrote earlier this week in which he said he believes it would be legal for the U.S. government to launch a drone strike against an American citizen on U.S. soil in certain "extraordinary circumstances."
Cruz asked Holder, "If an individual is sitting quietly at a café in the United States, in your legal judgment, does the Constitution allow a U.S. citizen on U.S. soil to be killed by a drone?"
A puzzled Holder replied, "For sitting in a café and having a cup of coffee?"
After Cruz pressed again, Holder said, "On the basis of what you said, I don't think you could arrest that person."
Sensing his hypothetical slipping away, Cruz added some important qualifiers to his scenario: "The person is suspected to be a terrorist, you have abundant evidence he is a terrorist, he's involved in terrorist plots, but at the moment he's not point a bazooka at the Pentagon. He is sitting in a café. Overseas, the United States government uses drones to take out individuals when they are walking down a pathway, when they are sitting at a café. If a U.S. citizen on U.S. soil is not posing an immediate threat to life or bodily harm, does the constitution allow a drone to kill that citizen?"
Holder replied, "I do not believe that, again, you have to look at all of the facts, when the facts that you have given me, this is a hypothetical, I would not think that in that situation the use of a drone or lethal force would be appropriate."
"I have to tell you I find it remarkable that in that hypothetical, which is deliberately very simple, you were unable to give a simple one-word answer: 'No,'" Cruz said a little later. "I think it is unequivocal that if the U.S. government were to use a drone to take the life of a U.S. citizen on U.S. soil and that individual did not pose an imminent threat that that would be a deprivation of life without due process."
Holder then said he agreed and the matter was eventually settled after Holder said, "Let me be clear. Translate my 'appropriate' to 'no.' I thought I was saying 'no.' Alright? No."
The exchange came a day after Sen. Rand Paul (R-Kentucky) published a letter from Holder in which the Attorney General said, "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." Paul is currently using the issue to filibuster the confirmation of President Obama's choice for CIA Director, John Brennan.
Later in the hearing, Holder received support from an unlikely source when South Carolina Republican Sen. Lindsay Graham congratulated the Attorney General and the President for their use of drones overseas.
"I think you've thought long and hard about how to defend the homeland under very difficult circumstances and I want to applaud you for the drone program," he said. " I think it has really helped us in Afghanistan and Pakistan and I believe it is a tactical tool that the President should be using and I think he's using it responsibly."
Graham posited his own hypothetical defending the President's right to order lethal action on U.S. soil if, say, someone hijacked plane and flew it in the direction of a government building. The plane, Graham said, would surely be shot down.
"Wouldn't that be kind of crazy to exempt the homeland, the biggest prize for the terrorists, to say for some reason the military can't defend America here in an appropriate circumstance?" he said.
In both of Holder's exchanges with the lawmakers, the term "imminent threat" was mentioned -- Cruz saying the man in the café was not an imminent threat, Graham saying the hijacked plane was -- but never defined.
Last month the Department of Justice published a document in which it spelled out the circumstances under which the U.S. government could target an American in a foreign country for elimination, and the document contained an unusual use of the term "imminent threat." The document said that in the case of targeting American terrorists, "imminent threat" did not meant that the U.S. necessarily had to have "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future," but rather a "broader concept of imminence" must take into consideration terrorists who are "continually planning" attacks and the typically limited window during which a lethal operation may be conducted.
It's unclear whether the same broad definition would apply to domestic strikes.