In both a letter to Sen. Rand Paul (R-Ky.) and in testimony before the Senate Judiciary Committee, Attorney General Eric Holder suggested that under some circumstances, the killing of American citizens within the United States by use of a drone would be legal and constitutional. Is he right?
Holder’s Answer to Paul’s Letter
On February 20, 2013, the Kentucky Senator wrote to John Brennan, Obama’s nominee for director of the CIA, asking him his opinion about whether “the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial.”
On March 4, the Attorney General answered Paul’s query.
After saying that there has never been a drone strike carried out by the federal government in the United States, Holder stated the Administration has no intention to carry one out. The Attorney General then went on to say how law enforcement agencies do a good job of “incapacitating” those within the United States who pose a threat to the country, therefore the question was “hypothetical.”
But Holder did not stop there. He went on to say, “It is possible, I suppose to imagine extraordinary circumstances 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.”
With that possibility, the Attorney General raised more questions than he answered.
Holder was equally hesitant to provide a definite “no” on the question of the use of drones in the United States when he testified before the Senate Judiciary Committee.
The Law of Posse Comitatus
Posse Comitatus, more commonly referred to as a posse, derives from British law. It enables a sheriff or the head of a law enforcement agency to conscript able-bodied men (and that would presumably now include able-bodied women) over a certain age to assist in keeping the peace or searching for a felon on the loose. While it is more commonly associated with the Wild West, posses can still be used today. Law enforcement formed a posse in Colorado in June 1977, for example, to search for serial killer Ted Bundy who had escaped from jail.
In 1878, the U.S. government passed the Posse Comitatus Act now found in 18 USC, §1385. The Act provides that except as provided by the Constitution or an Act of Congress, the U.S. Army and Air Force cannot be used to form a posse comitatus for the purpose of enforcing domestic laws or acting in a law enforcement capacity. Breach of the Act is punishable by fines and imprisonment for up to two years.
So, any use of the military in the United States against Americans in the United States would have to comply with the Constitution. For example, even if Congress passed a law authorizing homes containing suspected terrorists planning an attack to be hit by a drone, it is unlikely the Act would be found constitutional under the Due Process Clause. It is extremely difficult to envisage a situation where the federal government could legitimately use a drone other than against what would be classified as an act of war.
Only Congress Can Declare War
Under Article I, Section 8, of the Constitution, only Congress can declare war. But from Harry Truman and Korea on down to the current administration, presidents have been deploying troops without Congressional approval. The constitutional authority for declaring war or deploying troops, before or without Congress, is found in Article II, Section 2 that provides the President shall be the Commander in Chief of the armed services. If it is permissible to send troops into another country without Congress declaring war then there can be little doubt a President does not have to wait for Congressional approval before ordering action against those who are attacking the United States.
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