Can a president kill US citizens on US soil?....
A fortnight ago Sen. Rand Paul captured national attention with a 13-hour filibuster over the administration's implied claim that presidents can order the summary killing of US citizens on US soil, without due process. He demanded that the administration renounce such an asserted power. Paul's focus on domestic strikes was widely criticized. As many said at the time, a president who simply ordered a drone-launched missile strike on a suspected terrorist sitting in a Starbucks--inevitably causing collateral casualties among innocents sitting nearby--would immediately be impeached & removed from office.
The Attorney-General subsequently issued a two-sentence letter stating that the president claimed no such power, as to Americans "not engaged in combat" on US soil. That qualifier leaves an open door for those engaged in combat on US soil.
Ace prosecutor Andy McCarthy cogently explains that at least under some circumstances the president would have such power. He cited Alexander Hamilton's writings in Federalist Paper #23. Titled The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union, here is the full excerpt from which McCarthy quoted in part:
The principal purposes to be answered by union are these -- the common defense of the members; the preservation of the public peace as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.
The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils which are appointed to preside over the common defense.
This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal; the means ought to be proportioned to the end; the persons, from whose agency the attainment of any end is expected, ought to possess the means by which it is to be attained. (Italics in original.)
Hamilton's argument is discussed by McCarthy, who notes that ascertaining imminence of a threat, a criterion cited by those who view terrorists as problems for the criminal justice system to address, is often impossible. Thus the laws of war should be applied, and limits set, McCarthy stresses, not by judges but by Congress.
(The exigency argument was made by Sen. John McCain & others during the debate over harsh interrogation methods, when they cited the "ticking bomb" exception to oppoisition to such techniques.)
To which may be added secs. 159 & 160 (Ch. XIV: "Of Prerogative") from John Locke's Second Treatise on Civil Government (1690), a text cited by Thomas Jefferson as the source of "natural rights" embedded in the Declaration of Independence, and much admired by the Framers of the Constitution:
Sec. 159. WHERE the legislative and executive power are in distinct hands, (as they are in all moderated monarchies, and well-framed governments) there the good of the society requires, that several things should be left to the discretion of him that has the executive power: for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it. Many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require: nay, it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. That as much as may be, all the members of the society are to be preserved: for since many accidents may happen, wherein a strict and rigid observation of the laws may do harm; (as not to pull down an innocent man's house to stop the fire, when the next to it is burning) and a man may come sometimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon; 'tis fit the ruler should have a power, in many cases, to mitigate the severity of the law, and pardon some offenders: for the end of government being the preservation of all, as much as may be, even the guilty are to be spared, where it can prove no prejudice to the innocent.
Sec. 160. This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.
So, contrary to Senator Paul's assertion, there are sources pertinent to our constitutional tradition, inherited from the English legal tradition, supporting emergency action by presidents during time of war, even against American citizens on US soil.
I mention in my book that government is increasingly comfortable with a view of society as a giant “Panopticon” — the radial prison devised by Jeremy Bentham in 1785, in which the authorities can see everyone and everything. In the Droneworld we have built for the war on terror, we can’t see the forest because we’re busy tracking every spindly sapling. When the same philosophy is applied on the home front, it will not be pretty.
Perhaps, but the legal issue cuts in favor of emergency presidential power. That it may well be misapplied is a prospect Steyn cogently argues we should fear, with evidence the normally highly astute Rabinowitz overlooks. Yet Paul's worst fears do not necessarily follow from Steyn's examples; his "Starbucks" example, DR notes, jumps the shark. Congress & voters alike should "trust, but verify" presidential claims of necessary emergency action.
Bottom Line. The good news is that the president possesses the authority to use drones in domestic emergencies. The bad news is that that power--especially in this administration--is likely to be abused, though not via the extreme case offered by Sen. Paul.
Letter from the Capitol, LFTC, National Security, Homeland Security, Conservative Politics