A Non-Combatant Terrorist? Holder Issues New Statement On Obama’s Right To Kill Citizens Without Charge or Conviction

dronetoy2PresObamaWe previously discussed how Attorney General Eric Holder wrote a letter confirming that the President would have authority to kill citizens on U.S. soil without a charge or conviction. His answer triggered a principled filibuster by Sen. Rand Paul and another embarrassment to Democratic Senators who, again, chose personality over principle in staying silent. Now, Holder has issued a new statement. No, President Obama still claims the right to kill U.S. citizens on his sole authority. However, Holder now says that, if the citizen is “not engaged in combat on American soil,” the President cannot vaporize him. The answer leaves the constitutional claim of Obama even more confused and conflicted. Does this mean we have a third category now under the policy: citizen, citizen terrorist, and citizen non-combatant terrorist? The difference appears to determine whether you can be vaporized or speak to counsel but Holder is not explaining to the citizenry.

In his prior letter, Holder answered a question about whether the President was claiming the right to kill citizens on U.S. soil. This follows the release of a memo showing that Holder’s description of the policy at Northwestern University Law School was narrower than the actual policy described within the Administration. A memo leaked to the press shows that the Administration has adopted a virtual limitless definition of imminence: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Last week, Holder 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.”

After the filibuster, Holder wrote a short terse response to Paul: “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.”

It is not clear how this “additional questions” differed from the first or why Holder did not answer the question previously. The use of “it has come to my attention” adds a wonderfully dishonest element to an evasive answer. It is not clear what Holder means by “engaged in combat” since the Administration memo shows that the Administration is using an absurdly broad definition of “imminent” threat under the kill list policy. Since the Administration has continued to assert that terrorists are engaged in a war against the U.S., the terse reply of Holder seems designed to preserve later flexibility.

Moreover, there is nothing in the constitutional claim of the Administration that reflects such a limitation. Deciding on where to kill a citizen would be an discretionary policy under the sweeping presidential authority described by the Administration. As noted in earlier columns (here and here and here), it is astonishing how citizens, including so many liberals and civil libertarians, Obama is saying that his appointment of a non-binding committee satisfied due process and relieves any need for judicial review. Moreover, if the President has the inherent authority to kill a citizen in Canada, it is not clear why such inherent authority would not exist a few hundred yards away in Detroit. The Administration has said that it can use the unilateral power when it considers a capture to pose undue risk to its personnel.

What is particularly striking is that we have a president who is asserting the right to kill any citizen but the Administration has classified memos on that authority and the Attorney General will only give a Senator a terse two line conclusory statement on scope. The Administration appears to believe that there is little need to explain the details on killing citizens, such as how it defines “combat.” Obviously, if there is a war occurring in the United States, a president has the right to put down insurrection or attacks on the federal government. These strikes concern targeting terrorists. One can easily foresee this or a future president insisting that an alleged terrorism conspiracy is a form of combat.

It would seem an obvious thing to explain how they define combat and whether an alleged terrorist would fall into it. Does this mean that there will be a category of non-combatant terrorists for domestic strikes? How is that defined? It seems like a hole big enough to fly a drone through.

Since police can already use lethal force to stop an attack in progress, the answer leaves more questions than it answers in my view. For a citizen it would mean that he or she can be killed abroad on the basis of the Administration’s wildly broad definition of “imminent” but domestically would fall under a different “combat” definition. Where is the line between an “imminent” threat and “combat” drawn? Does Holder mean there is a different meaning to imminence when someone steps over the border? We already have the definition of “imminent” and the Administration’s new definition of “imminent.” Is this yet a third option?

129 thoughts on “A Non-Combatant Terrorist? Holder Issues New Statement On Obama’s Right To Kill Citizens Without Charge or Conviction”

  1. Brad:
    It’s really too bad you don’t have more time to debate. Stand-up like yours is hard to find.

  2. Brian,

    And I see you slept through your civics, logic and rhetoric classes by your false equivalences (education is not indoctrination) and your ad hominem which are both logical fallacies and ineffective rhetoric. Your lack of knowledge of basic civics is best illustrated by this sentence:

    “I’m sure that it has not escaped your attention that we were originally founded as a REPUBLIC, and have devolved into democracy.”

    If you understood the Constitution within the proper framework of jurisprudence, legal theory and political science, you would know this sentence is gibberish. By the terms of the Constitution, the U.S. was formed as a constitutional presidential representative democratic secular republic . . . ergo it was a democracy from the start and didn’t “devolve” into one. U.S. Const., Art. I-III. Other documents that informed or shed light the drafting of our Constitution (such as the Declaration of Independence, The Federalist Papers, Paine’s Common Sense, the letters of Thomas Jefferson, John Adams, etc.) establish that this was intentional just as was creating the Separation of Powers Doctrine by structuring the government in a triumvirate form or creating a Separation of Church and State by operation of the Establishment and Free Exercise Clauses of the 1st Amendment.

    I also suggest reading “The Social Contract or the Principles of Political Right” by Jean Jacques Rousseau (1762) and “Leviathan” by Thomas Hobbes.

    I’m always perplexed? amused? astounded? by people who try to use the words “education” or “educated” as a pejorative. It’s does say something about them though. You can start by reading the above named documents and about the history around them if you should wish to alleviate your seeming self-inflicted wound.

    Or not.

    I’m good with it either way.

  3. Ah mespo727272, you are right. What was I thinking?

    I suppose the contract to which you refer is the Constitution? The one of which I am considered “Posterity”, and therefor the third party beneficiary? Is there another that I’m missing, or are we still in the land of theory?

    While it’s true that I have the right to “opt-out” as you so quaintly put it, by renouncing my citizenship, I would prefer that they actually keep the terms of the agreement. Unfortunately, I’m afraid your assertion is correct. We now live in a representative democracy.

    As well educated as you obviously are, I’m sure that it has not escaped your attention that we were originally founded as a REPUBLIC, and have devolved into democracy. In case the differences have blurred over the decades, perhaps a refresher is in order: http://www.lexrex.com/enlightened/AmericanIdeal/aspects/demrep.html

    And maybe the discussion should revolve around “freedom”, of which the US barely ranks in the top 10, where once it was first. (http://www.heritage.org/index/ranking)

    Alas, I don’t have as much time to spend debating on these types of topics as I used to. It now takes too much of my time, as a beneficiary of the social contract, to pay off my share of the national debt, which is currently $53,140.22 as of today. But I’m working on it!

  4. Brad:

    The indoctrinated one is clearly you. Not Gene. While no underage person can contract, they can be the beneficiary of a contract at birth. That’s why government is, in essence,a public trust contract for all it’s citizens, capacity to contract notwithstanding. Once the age of majority is reached you can opt out by renouncing your citizenship, but few do. Your point about being subjected to some kind of oligharchical oppression is equally wrongheaded. We enjoy more freedom in our republic than most anywhere else on earth and your cynical take on representative democracy is disproven every time we don’t have to say “President Romney.” You may not like the notion of a social contract but you derive it’s benefits nonetheless. Why shouldn’t you do your part like the rest of us?

  5. I can see that Gene H. had drank the statist cool-aid. A very well educated (indoctrinated) response!

    Nobody can be born into a contract (unless they are a slave). A contract is entered into voluntarily, and for mutual benefit, and only upon reaching the age of majority. If the underpinnings of government are merely a “theory” as you state above, then they do not exist in reality. A society is merely an aggregation of different individuals who decide to live together (more or less) cooperatively.

    This “contract” that is dragged out by statists is used to bludgeon any logical dialog and impose an artificial authority over your existence: “You, are obligated to support, via TAXES, anything your elected representatives (masters) dictate. It’s part of the Social Contract.”

    Your false dichotomy of choice, either “organized society” or “barbarism” is no choice at all. By “organized society” you mean the the command and control society in which the will of a small minority of the elites (aka oligarchy) is imposed on the majority – which is what we have today.

    “You may opt out by renouncing your citizenship”, is there, again to present a false dichotomy, presuming that you are either 100% supporting the establishment, or out. There’s no other choice. Sorry my friend, but there are plenty of choices.

    And your justification for taxes is also false. While taxes are the life-blood of government, prior to 1916, there was no direct taxation, and somehow we all manged to survive, prosper, and become the place where everyone in the world wanted to migrate. How can the State do, what for you would be illegal, but because they have a badge and a gun (and funny hats, and a printing press), suddenly it’s not only legal, but acceptable?

    And to drag out the old tired “Somali pirates” meme. Really?

  6. http://www.civicmissionofschools.org/the-campaign

    “The Campaign for the Civic Mission of Schools is a coalition of over 70 national civic learning, education, civic engagement and business groups committed to improving the quality and quantity of civic learning in American schools. The Campaign’s goal is to increase and improve civic learning in grades K-12 by working for policies that implement the recommendations of the Civic Mission of Schools report. This includes efforts to bring about changes in national, state, and local education policy.”

  7. “In 2009, Justice Sandra Day O’Connor founded iCivics to reverse Americans’ declining civic knowledge and participation. Securing our democracy, she realized, requires teaching the next generation to understand and respect our system of governance. Today iCivics comprises not just our board and staff, but also a national leadership team of state supreme court justices, secretaries of state, and educational leaders and a network of committed volunteers. Together, we are committed to passing along our legacy of democracy to the next generation.

    In just two years, iCivics has produced 16 educational video games as well as vibrant teaching materials that have been used in classrooms in all 50 states. Today we offer the nation’s most comprehensive, standards-aligned civics curriculum that is available freely on the Web.”


  8. mespo, et al,
    I don’t know if this is widespread in public school education across the country, but my youngest never took a single civics course all the way through school. When I was in school, we were required to take civics in the eighth grade and had to take a course called “Government” in either the eleventh or 12th grade. The latter was almost entirely focused on the Constitution. Those courses are no longer required for graduation in our state.

    My guess is that is the way the Koch and Bush families want it, not to mention the GOP.

  9. I know, raff. I know. I just can’t help it!!!! 😈


    Or words to that effect.

  10. Apparently so, mespo.

    But enough of that edumacation stuff!

    Honey Boo Boo is on.


  11. Gene H:

    “What is this “social contract” of which you speak? When did I enter into said contract? How do I forfeit my right to participate?

    How do I waive rights which are inalienable?

    Convenience is no excuse for making crap up.”


    It’s staggering how many folks have no idea about their government, its processes, much less its historical and philosophical underpinnings. Do you really have to be a poly sci major to know about Locke, Hobbes, Rousseau, et als?

  12. LK,

    That was pretty much my reaction upon reading that story, but I think mine may have included several expletives.

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