By Conor Friedersdorf
The attorney general should be brought before Congress and interrogated about his notion of what the president could do in the aftermath of an attack.
On December 7, 1941, Japanese war planes bombed the U.S. naval base at Pearl Harbor, Hawaii. Six decades later, Al Qaeda terrorists flew hijacked airplanes into the World Trade Center and the Pentagon. Neither President Franklin Roosevelt nor President George W. Bush targeted and killed Americans on U.S. soil in the aftermath of those attacks. Doing so wouldn’t have made any sense.
How strange, then, that Attorney General Eric Holder invoked those very attacks in a letter confirming that President Obama believes there are circumstances in which he could order Americans targeted and killed on U.S. soil. “It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws … for the President to authorize the military to use lethal force within the territory of the United States,” he wrote. “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 on September 11, 2001.”
The very scenario to be guarded against is a president using the pretext of a terrorist attack to seize extraordinary powers. Isn’t that among the most likely scenarios for the United States turning into an authoritarian security state? To be sure, if Americans are at the controls of fighter jets en route to Hawaii, of course Obama could order that they be fired upon. If Americans hijacked a plane, of course it would be permissible to kill them before they could crash it into a building. But those are not the sorts of targeted killings that Senator Rand Paul asked about in a letter to White House counterterrorism adviser John Brennan, prompting Holder’s response.
If you read to the end of Holder’s letter, to the passage where he says, “Were such an emergency to arise, I would examine the particular facts and circumstances before advising the president on the scope of his authority,” it becomes clear that, despite invoking Pearl Harbor and 9/11, even he isn’t envisioning a response to an attack in process, which would have to happen immediately. So what does he envision? If he can see that a “for example” is necessary to explain, he ought to give us a clarifying example, rather than a nonsensical one that seems to name-check events for their emotional resonance more than for their aptness to the issue.
Elsewhere in his letter, Holder writes that “the US government has not carried out drone strikes in the United States and has 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.” Interesting they reject it “as a policy matter,” but aren’t willing to reject military force in the United States as a legal matter, even in instances where law enforcement would better incapacitate the threat. For the Obama Administration, conceding that the executive branch is legally forbidden to do certain things is verboten, despite the fact that an unchecked executive is much more dangerous than the possibility of a future president failing to do enough to fight back against an actual attack on our homeland*.
Any thinking person can see that Holder’s letter is non-responsive, evasive, and deliberately manipulative in its sly reassurances, right down to the rhetorically powerful but substantively nonsensical invocation of 9/11. (Being more subtle about it than Rudy Giuliani doesn’t make it right.) To credulously accept this sort of response, on an issue as important as this one, is behavior unfit for any citizen of a free country, where safeguarding the rule of law is a civic responsibility.
Rand Paul deserves tremendous credit for eliciting this response. In its wake, he needs help from his colleagues and his countrymen. The time to discuss the appropriate scope of the president’s authority is now, not in the aftermath of a catastrophic attack on the nation, as Holder suggests. The fact that he disagrees speaks volumes about Team Obama’s reckless shortsightedness.
*Does anyone imagine, in the aftermath of a future Pearl Harbor or 9/11, that Congress would refuse to authorize whatever reasonable authority the executive branch required to kill or capture the perpetrators? It is difficult to imagine anyone even worrying over so implausible an outcome.