As Adam Serwer reported yesterday on Mother Jones:
Yes, the president does have the authority to use military force against American citizens on US soil—but only in “an extraordinary circumstance,” Attorney General Eric Holder said in a letter to Sen. Rand Paul (R-Ky.) on Tuesday.
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.
That is superficially convincing, but it absolutely won’t do. I would certainly like the president to “protect the homeland in the circumstances like a catastrophic attack.” Who wouldn’t? Who really questions whether the government should be able to respond to military attacks on American soil? Nobody. And nobody doubts that police may shoot dead U.S. citizens who are shooting at the innocent, either. But, as Rand Paul points out, that’s not the question. This is the question:
It’s not so simple. You see, the drone strike program is under the Department of Defense, so when the C.I.A. says they’re not going to kill you in America, they’re not saying the Defense Department won’t. So Eric Holder sent a response, the attorney general, and his response says, “I haven’t killed anyone yet. I don’t intend to kill anyone but I might.” And he pulls out examples that really aren’t under consideration. There is the use of lethal force that can always be repelled. If our country is attacked, the president has the right to defend and protect the country. Nobody questions that. Nobody questions if planes are flying towards the twin towers whether they can be repulsed by the military. Nobody questions whether a terrorist with a rocket launcher or a grenade launcher is attacking us, whether they can be repelled. They don’t get their day in court. But if you are sitting in a cafeteria in Dearborne, if you happen to be an Arab-American who has a relative in the middle east and you communicate with them by e-mail and somebody says, oh, your relative is someone we suspect of being associated with terrorism, is that enough to kill you?. . . We have a process for deciding this. We have courts for deciding this, to allow one man to accuse you in secret, you never get notified you have been accused. Your notification is the buzz of the propellers on the drone as it flies overhead in the seconds before you’re killed. Is that what we really want from our government?
The question remains: What constitutes “imminence” in the modern world? What are the rules? Who decides? Rand Paul is right. The government owes the people some answers.