In response to Rand Paul's letter [4] asking whether "the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial," we now have an answer. Attorney General Holder responds, in a word "Yes." Of course, it is caveated with 'extraordinary circumstances' and 'necessity' but as Mike Krieger so subtly summarizes [5]: "the military can assassinate U.S. citizens on U.S. soil." As NBC reports [6], the letter from Holder surfaced just as the Senate Intelligence Committee was voting 12-3 to approve White House counter-terrorism adviser John Brennan to be CIA director. The vote came after the White House agreed to share additional classified memos on targeted drone strikes against U.S. citizens overseas. As Rand Paul commented, "this is more than frightening... it is an affront to the Constitutional due process rights of all Americans."
Full Holder Letter:
Dear Senator Paul,
On February 20, 2013, you write to John Brennan requesting additional information concerning the administration's views about whether "the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial."
As members of this Administration have previously indicated, the US government has not carried out drone strikes in the United States and have 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 individual have been arrested and convicted of terrorism-related offenses in our federal courts.
The question you have posed is entirely hypothetical, unlikely to occur and 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 of a catastrophic attack like the ones suffered on Dec. 7, 1941 and Sept. 11, 2001.
Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.
Sincerely,
Eric Holder,
Attorney General