The drones are coming. Who could have imagined such a science-fiction tale, a president who could kill, via remote control, anyone he declares an enemy of the state – and on American soil. Until now, the White House refused to close the door on such a scenario, despite pretensions of taking civil liberties seriously.
Sen. Rand Paul won a big concession after a filibuster meant to block a vote on the confirmation of John O. Brennan as director of the CIA. On Thursday, the administration finally, after the 13-hour filibuster ended, answered the question it stubbornly would not entertain: Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil? Eric H. Holder Jr., the attorney general who had danced around the question for days, finally replied: “The answer to that question is no.”
As the national security adviser to the president, Mr. Brennan had backed the administration’s practice of using armed, unmanned drones to kill terrorists, mostly in Pakistan and Afghanistan. At his confirmation hearing last month, Mr. Brennan sidestepped questions regarding the constitutional propriety of killing Anwar al-Awlaki, an American citizen and leader of al Qaeda in the Arabian Peninsula in Yemen, and whether such killing could happen on American soil. Following the Senate Intelligence Committee‘s approval of Mr. Brennan‘s nomination, Mr. Paul invoked the spirit of Jimmy Stewart in “Mr. Smith Goes to Washington” (and of Huey P. Long, Strom Thurmond and others), spending 13 hours on his feet on the Senate floor, detailing the folly of confirming the cheerleader for the drones as director of the CIA while fundamental constitutional questions remained unanswered.
The outcry over extrajudicial killings was growing, and the administration was scrambling to avert a public relations disaster. A 16-page Justice Department memorandum was leaked last month in an unsuccessful attempt to allay skepticism over the drone-strike program, in which 2,400 people have been killed. The document laid out conditions for the use of lethal force to kill a terrorist who is an American citizen, including the required approval by “an informed, high-level official,” together with a finding that “capture is infeasible.”
The central question was whether Mr. Obama would ever go that far on U.S. soil. Sen. Ted Cruz, Texas Republican, grilled Mr. Holder about that at a Senate Judiciary Committee hearing on Wednesday. After much hesitation, Mr. Holder agreed that such attacks would not be “appropriate,” but stopped short of saying the president’s use of drones to kill such Americans would be unconstitutional.
Clarity is important, because there can be no flexibility on the answer to the question of whether the government can assassinate Americans on American soil, and with weapons intended for foreign battlefields. It’s the job of law enforcement, duly restrained by an independent magistrate and the Constitution, to capture or kill dangerous criminals. If a terrorist can be seen, he can almost certainly be caught.
We all owe thanks to Sens. Paul, Cruz and their “band of brothers” who forced an answer from the Obama administration, but the issue is far from resolved. Rather than taking the president’s word that domestic drone strikes will never be used, Congress must adopt legislation that ensures the president, and all the presidents who follow, will never become the executioner in chief.