Attorney General Eric Holder this week said the U.S. could theoretically, in a time of crisis, use lethal force against a U.S. citizen on American soil -- an assertion that sparked a debate in the Senate today and has prompted one Republican to start drafting legislation on the issue.
In a Senate Judiciary Committee hearing today, Holder was asked about a letter he sent to Sen. Rand Paul, R-Ky., this week, responding to Paul's questions regarding the constitutionality of the government using lethal force -- including drone strikes -- against Americans in U.S. territory. Holder responded in his letter, "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 December 7, 1941, and September 11, 2001."
In today's hearing, Sen. Ted Cruz, R-Texas, asked Holder whether such an attack would be constitutional against an American on U.S. soil who was determined to be a threat but was merely "sitting in a cafe." In other words, he said, someone "not posing an imminent or immediate threat of death or bodily harm."
Holder clearly rejected the premise from the start, though he did not directly answer Cruz's question on the constitutionality of the scenario. "I would not think in that situation the use of a drone or lethal force would be appropriate," he said.
After some back and forth, Cruz chastised Holder for failing to say unequivocally that a drone strike would be unconstitutional in such a scenario. "I find it remarkable that in that hypothetical... you are unable to give a one word or one syllable answer -- 'no'," he said.
Holder clarified that by saying the use of force in that case would be inappropriate, he meant "no" in response to Cruz's question.
Cruz retorted, "That statement has not been easily forthcoming." He said he will be introducing legislation in the Senate "to make sure the U.S. government cannot kill a U.S. citizen on U.S. soil absent an imminent threat."
Holder maintained that the legislation Cruz described would be "totally consistent" with what he said in his letter to Paul, since he cited using such force in response to a threat on par with the Sept. 11 attacks.
Sen. Chuck Grassley, R-Iowa, asked Holder whether a law prohibiting the president's use of lethal force on U.S. soil would be constitutional. Holder said he wasn't sure, adding that such a bill "might be contrary to Article 2 powers" under the Constitution.
Sen. Lindsey Graham, R-S.C., defended the use of force in crisis situations, saying it would be "kind of crazy" to prohibit the military from defending the homeland, even as it continues to fight al Qaeda and other terrorist elements abroad.
"I want to stand by you and the president to make sure we don't criminalize the war," Graham told Holder.
Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee, said the committee would further review the use of drones during a hearing later this month.