Human rights advocates have been getting help from an unexpected source this week: Senate Republicans.
In a surprising - perhaps even stunning - reversal, Attorney General Eric Holder told the Senate Judiciary Committee on Wednesday, March 6 that, unless a person poses an imminent danger, the U.S. Constitution does not allow American citizens on American soil to be assassinated by the government without a trial. This differs from White House policy regarding Americans in foreign countries such as Yemen, where President Obama ordered the extrajudicial assassination of Anwar al-Awlaki, an American citizen.
Rand Paul's filibuster put him on the same side of the drone issue as Code Pink.
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It also differs from previous Obama administration statements. Holder had previously written a letter to Senator Rand Paul (R-KY), claiming that the president has the authority to launch drone strikes on American citizens within the United States. According to Holder, "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."
Holder's letter prompted Senator Paul to filibuster confirming John Brennan as CIA Director. Paul said that his filibuster was intended to protect Americans' right to trial and call attention to Federal policies regarding drones, which are quickly being purchased for deployment within the United States.
I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court. That Americans could be killed in a cafe in San Francisco or in a restaurant in Houston or at their home in Bowling Green, Kentucky, is an abomination.
Paul also criticized the ongoing wars in Afghanistan and Iraq, and chided Congress for delegating its constitutional war-making powers to the president. Paul's position on Afghanistan also appears to be a reversal, since he initially supported its invasion. Paul expressed frustration with the administration's hesitation to renounce targeted assassinations within the United States.
When I asked the president, can you kill an American on American soil, it should have been an easy answer. It's an easy question. It should have been a resounding and unequivocal "no." The president's response? He hasn't killed anyone yet. We're supposed to be comforted with that. The president says, I haven't killed anyone yet. He goes on to say, "and I have no intention of killing Americans. But I might."
Is that enough? Are we satisfied by that? Are we so complacent with our rights that we would allow a president to say he might kill Americans?
Attorney General Holder gave his remarks to the Senate Judiciary Committee while Senator Paul's filibuster was in progress. Senator Ted Cruz (R-TX), who was helping Paul with the filibuster, left it long enough to question Holder about the Federal government's policies regarding drones.
With Code Pink protesters in the audience holding signs that read, "Drone Murder is Not Legal" and "Give Us the Drone Memos," Cruz asked Holder, "Does the Constitution allow a U.S. citizen on U.S. soil who doesn't pose an imminent threat to be killed by the U.S. government?" Holder responded to the question several times by discussing whether such an action would be appropriate, instead of addressing its constitutionality.
That response annoyed Cruz, who fumed,
Attorney General, I have to tell you that I find it remarkable that... you are unable to give a simple, one word, one syllable answer: 'No.' 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 person did not pose an imminent threat, that would be a deprivation of life without due process.
But as Cruz started to ask the next question, Holder blurted out, "Let me be clear: Translate my 'appropriate' to 'no.' I thought I was saying no, all right?" [The entire hearing can be heard here. Questioning by Senator Cruz begins at 57:05.]
The next day, White House Press Secretary Jay Carney read a new letter from Holder to Senator Paul, reaffirming Holder's testimony. In Thursday's letter, Holder wrote:
It has come to my attention that you have now asked an additional question: 'Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?,' The answer to that question is no.
Paul seemed pleased when he received news of the administration's reversal. "Hooray," said Paul, "For 13 hours yesterday, we asked him that question. So there is a result and a victory. Under duress, and under public humiliation, the White House will respond and do the right thing."
Holder's new statements are significant. The Obama administration is now on record against the constitutionality of killing Americans in the United States who do not pose an imminent threat, no matter what they are suspected of. That will make it very hard for such a policy to hold up in court, at least for the rest of President Obama's administration. It also sets a precedent for future administrations, which would have to be addressed before any future administration could implement a policy of extrajudicial killings.