Eric Holder, Public Enemy (Updated)

Via Kevin Underhill at Lowering the Bar, the Attorney General of the United States of America, Eric Holder, explains his understanding of the United States Constitution in a letter to Senator Rand Paul :

What Holder does not say is that the Constitution prohibits the president from killing American citizens on American soil without trial, conviction and all the constitutional niceties that exist to protect us from the government. Holder does explain, however:

Well, the word “no” does appear in that letter, but only as part of the phrases “no intention of doing so,” “we hope no President will,” and “no choice,” none of which are really what I was looking for there. In fact, they are the opposite of “no.”

Just to review, the Attorney General just said yes, the President does have “the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and without trial.”

This comes from the chief law enforcement officer of a Democratic administration who has sworn fealty to the Constitution.  Since the government has the military, the drones and the weapons, Holder’s letter has just raised the stakes of survival in this nation. 

We are allowed to continue to live so long as the President decides to let us.  There may be no intention of killing Americans on American soil. The government may hope no President ever will.  Hope springs eternal.

Until now, we operated under the belief that no President, no Attorney General, would ever be so bold, so arrogant, as to believe that they were empowered to kill their own people at will.

Until now.  This changes things.  By this letter, Eric Holder has disavowed the United States Constitution, and whatever moral and legal authority he may have possessed to hold his office.  If President Obama does not disavow this letter by his appointed Attorney General, then he too has embraced the position that he is not bound by the Constitution of the United States.

Does President Obama believe, like Eric Holder, that he is above the Constitution?

Update:  The president says “no.”

Carney said Attorney General Eric Holder sent a letter to Paul Thursday [March7, 2013] clarifying the administration’s stance on the issue, which generated considerable controversy on Twitter Wednesday as Paul’s filibuster unfolded.

“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,” Carney said, quoting Holder’s letter. (POLITICO has posted a copy of the very brief letter here.)

Glad to hear we got that cleared.

35 thoughts on “Eric Holder, Public Enemy (Updated)

  1. Max Kennerly

    Until now, you didn’t think the President had the power to authorize the use of lethal force? Of course the President does in some circumstances, and the President does it routinely, in the context of FBI, DEA, Secret Service, and U.S. Marshal activities. Most of it happens without even reaching Washington. Are you saying, for example, that if a Secret Service agent discovers an assassin about to shoot at the President, the Secret Service agent is not permitted to use lethal force to thwart the attempt because the President lacks that power? That a U.S. Marshal who happens to be on a flight mid-hijacking cannot use lethal force to stop it because the President lacks that power?

    The real question is where that power stops, and the real problem here is that the administration avoided the dozens of other questions Rand Paul (who is simply trolling for something to use, he doesn’t really care) asked of them, which would have further revealed the administration’s position. Those questions were much more detailed “hypotheticals.”

    If the President admitted he had the power to order the assassination of a citizen in lieu of an arrest and prosecution, that would be a big problem, but that isn’t what he said. He said he could authorize lethal force to thwart Pearl Harbor and 9/11 mid-attack. Well, duh.

  2. Patrick

    You think it’s “trolling” to ask a President who has already “authorized lethal force, such as a drone strike, against a U.S. citizen,” off U.S. soil whether he has the power to do it “on U.S. soil?”

    You don’t think that’s a good question? Really?

  3. Bruce Coulson

    Perhaps President Obama’s lengthy studies and lectures on the Constitution to young law students led him to the conclusion that the office of President must, in modern times, be above the Constitution in order to preserve the country.

    I wonder what ideas his former students might have drawn from Professor Obama’s lectures?

  4. Luke Gardner

    Many years ago now I took a National Security Law class with the recently late Prof. Ralph Stein of Pace Law.

    Stein’s contention was that the President has enormous constitutional power – in his capacity as CINC – to do whatever is needed to be done in order to protect the United States from attack at the hands of an enemy – foreign or domestic – wherever that enemy was located.

    FWIW, I very reluctantly agree with Stein’s assessment. That power however is the president’s alone and probably not delegable for execution to his attorney general or any other “civilian” officer.

  5. John_Barleycorn

    Habeas corpus is now officially at the discretion of the Central Scrutinizer.

    Who would have figured it? Pretty spooky concept really.

    I leave your readers with the music.

  6. SHG

    I usually reserve the right to pick music to myself, but I’ll make an exception this tme for Zappa.

  7. Josh King

    As this was a hypothetical, I don’t see how the core of the answer could be different than what Holder wrote. The President clearly has constitutional authority to take military action against US citizens who have taken up arms against America as part of an enemy force in a defined war. While its a long way from there to the “war on terror”, and special considerations abound when using the military on US soil, it’s certainly not unimaginable – or unconstitutional – when speaking of hypotheticals.

  8. SHG

    Some people, myself included, don’t see much of a question that the president cannot constitutionally execute Americans on American soil at will. The due process clause, for instance, is more than an inconvenience. That the question is a hypo really doesn’t change this. So yeah, it’s absolutely unconstitutional.

  9. bobow

    This makes no sense. If we are attacked, then of course the military or law enforcement would respond with lethal force. Dont need the President for that even though he could command it – more than likely would be action on the spot. What we are talking about here is the execution of a single individual who happens to be a U.S. citizen. The evidence of “guilt” would be provided no doubt by the same intelligence agencies like the CIA that have served us so well in correctly identifying terrorists, the worst of the worst. No. The answer is no. The Constitution trumps the president, not the other way around.

  10. Sam


    The obvious flaw in your reasoning is that the examples you cite all involve the use of force by law enforcement entities. And, no, a law enforcement official isn’t authorized to kill someone merely because he thinks they are dangerous. To be sure, the rules of engagement for domestic law enforcement permit the use of lethal force, but only in immediate self-defense (of oneself or another) and only as a last resort. The rules of engagement in war allow the use of lethal force as a first response, without any need to establish the imminence of the threat. Provided the “victim” is a permissible target, it is perfectly legal to let the bombs fly and ask questions later. And that’s the really dangerous game that Obama/Holder are playing here. They are blurring the lines between police and military rationales for the use of lethal force. Once the idea takes hold that a US citizen who is suspected of being a member of a terrorist group is an “enemy,” rather than a criminal, it’s a short step to saying he’s a legitimate target. And under the law of armed conflict, there is no need to wait until the treat becomes imminent. And if the “battlefield” is literally everywhere, drones become a serious threat indeed.

  11. Joe Pullen

    Indeed Sam, thank you. I’m not sure which is more meme worthy – the fact that I’m not a lawyer and understand this or that Max is, and doesn’t.

  12. Max Kennerly

    No, I think the questions are all valid, but I think the motive is bunk. Rand Paul doesn’t really care, he cares because a Democrat is President and because he’s not Vice President. If he was VP, or if he was in Congress while a Republican was President, he would laugh at any naive fool who was suggesting the President can’t use force to defend ourselves.

    I do, however, think this obsession over a “yes/no” answer to “can the President ever use lethal force” is a dangerous distraction, because the answer is “obviously yes sometimes, obviously no other times, and a gray area over which many of us disagree.”

    What Obama just did was throw a troll answer at a troll question, and it elicited exactly the response he wanted: a bunch of people debating the non-issue of whether the President can, in theory, authorize lethal force against Americans. Of course he can. The real question involve details like, “can the President authorize lethal force against a U.S. Citizen who poses no imminent threat in lieu of attempting an arrest, like has been happening overseas?” That seems to be the question everyone really cares about, but it’s not the question answered here.

  13. Max Kennerly

    “Only in immediate self-defense” is exactly what Holder said. He gave a whopping two examples: Pearl Harbor and 9/11. If the President, say, got word a hijacked airliner was on its way to the Super Bowl, and he had a drone nearby, could he shoot it down? Of course. That’s all Holder answered, to deflect attention away from the harder questions that you’re raising about situations that do not involve imminent threats.

    Sadly, it has worked, and sent the Internet into a tizzy debating about of vague assertions. There is exactly one issue here: Holder didn’t answer the vast majority of Rand Paul’s questions, which would expose the Administration’s real views.

  14. Max Kennerly

    Where did Holder say “the president cannot constitutionally execute Americans on American soil at will”? He said the President could authorize lethal force if left “no choice” in the “emergency” context of “catastrophic attack.” This was a dodge, and apparently an effective one given the reactions.

  15. John_Barleycorn

    “I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy”

    [Ed. Note: Link deleted per rules. Quote is from WaPo.]

    If the lethal blow to habeas corpus that this post briefly addresses when taken in conjunction with Holder’s statement above, do not give you pause, please feel free to run around with with flag poles on the golf course near you this spring during thunderstorms.

    You obviously have nothing to worry about. What could possibly go wrong under with this sort of rhetoric coming out of the Attorney Generals Office?

    I could go with some more Zappa here but I have already been accommodated for that trespass.

    Perhaps the host will be generous enough to let me leave his readership with some news and marketing comedy to cheer you up. 😉

    [Ed. Note: Link deleted. I allow one link from Zappa and this is my thanks.]

  16. SHG

    Rand Paul may well be disingenuous, but that doesn’t improve Holder’s response. It’s not left to you to tell either Paul or Holder what the “real question” (why is it every young lawyer believes he knows the “real question” that everyone else has missed?), but the Attorney General to express the position clearly, fully and constitutionally.

    If only Eric Holder was as wise as you.

  17. SHG

    Grand examples offer no limits. You use examples that would be covered under existing law and fail to recognize the blurring of lines. Don’t blame the tizzy internet for your inability to appreciate where the lines are drawn or your blind faith in the trustworthiness of the government. 

    As Kevin Underhill pointed out, Holder failed to express a line that couldn’t be crossed. You may have no problems with his keeping his options open, but many others don’t share your faith in a government that believes itself empowered to kill whenever it decides to. 

  18. SHG

    Yes. Where did he say that?  So when President Cheney says “I had no choice,” that’s that. Kill away, Dick.

  19. R.P.

    Hypothetical: The 9/11 hijackers are headed to the twin towers to blow them up. Through some twist of hyper-technical immigration law, the hijackers, though Saudi citizens, can actually claim derivative U.S. citizenship (for example, because their parents had immigrated here). They are about to kill thousands of people. The President orders a pre-emptive strike. Wait, kill the hijackers? the lawyers cry. But they are American citizens! You owe them due process! Come on guys. You are supposed to be lawyers – you are supposed to be educated. Did law school require you to leave your brains at home? The wording of the Constitution is a means to an end; you don’t simply read it literally. The argument that the President can’t order whatever means are necessary to save lives is just silly. Ditto the notion that it matters whether you are an American citizen or not.

  20. SHG

    Your hypo is a poor example.  

    The 9/11 hijackers are headed to the twin towers to blow them up.

    It’s no different than a cop shooting a person with a gun aimed at him or someone else. The better hypo would be bombing an apartment in Brooklyn filled with Americans of Saudi heritage because someone said they planned to hijack a plane and blow up the twin towers. See the difference?

  21. bobow

    You are right only in the smallest sense. In your scenario, it would not matter if the hijackers are U.S. citizens or not. Other than that, you just don’t get it. I don’t recommend this very often, but maybe you should go to law school.

  22. Nigel Declan

    The Patriot Act, Guantanamo, extraordinary rendition, AEDPA, stop-and-frisk and now this. I am watching a slippery slope of Constitutional erosion unfold before my eyes all in the name of “security”. For shame.

  23. R.P.

    I have gone to law school. I remember my very-liberal property professor lecturing me about how it’s not what the Constitution says – it’s how you interpret it to achieve justice, and sometimes (for example with civil rights) your duty is to show how the Constitution should be interpreted to achieve justice. You know what? She was right. But her argument works on both sides (conservative and liberal). If you were living before the 13th Amendment, would you support slavery because the Constitution didn’t literally prohibit it? No – as a lawyer you would find ways to argue that the Constitution shouldn’t be interpreted to permit slavery. It’s the same here. So, by all means take a position on the substantive issue – whether the President should have these means to fight terrorism, but don’t rest your argument on what the Constitution “says.”

  24. SHG

    Maybe your property prof lied to you. The Constitution doesn’t exist to “achieve justice,” whatever that means, but as a bottom line limitation on the power of government. Sometimes lawprofs aren’t as forthright as they should be in handling impressionable minds.

  25. R.P.

    You call my hypo “poor” but not inapplicable. Which means that my hypo presents an applicable circumstance where giving the President the power to “kill” citizens would be “right.” You present a circumstance where the President’s exercise of his power would be wrong; but so what? So cops should be prohibited from ever firing their weapons because one of them might abuse the power? By the way, Presidents take an oath to the Constitution as well and we do have separation of powers.

  26. SHG

    My apologies for calling it “poor” but not inapplicable. It’s also inapplicable. Are there any other words I missed?

  27. Nigel Declan

    So in your analogy, insisting that the President not kill US citizens on US soil without due process is comparable to supporting slavery? The problem with a means-to-an-end approach to Constitutional interpretation is that it allows everyone to claim the Constitution says anything they want it to in order to accomplish their version of “justice”. Under this scenario, the government basically has carte blanche to do whatever it wants, right be damned.

  28. RP

    Well I would hope that a law student’s (or any student’s) mind would be impressionable! So you are saying that your view of the President’s power to kill a citizen derives 100% from what you consider to be the “black-letter law”, and has absolutely nothing to do with your political views or what you personally consider to be “justice” or how to “achieve justice”? That would be a pretty odd position to take (treating the Constitution like a “legal code” to be slavishly followed in a literal fashion no matter the circumstances), but that would have to be your position if you disagree with my argument that the Constitution must be interpreted to achieve one’s own conception of justice. You see your dilemma?

  29. R.P.

    Exactly! That is exactly what I am arguing! A means to an end approach is not only essential, but it is what already occurs, sorry to break the news. And it doesn’t mean that we have an interpretive “free for all” where everyone does what they want, or the government has carte blanche power (as you call it) because our history, culture, norms etc. would not permit absurd interpretations of the Constitution but only reasonable ones. Take the First Amendment. It says “no law.” So, then, I suppose people are free to possess child pornography? Of course not! But wait, where does the First Amendment have an exception for child pornography? It doesn’t. We interpret it that way because of our culture. Geez, do I really have to explain this to all you guys? Am I the only one who took jurisprudence courses in law school?

  30. bobow

    Maybe you should have been less attentive in your property class and a bit more in your Constitutional law class. Or even listened more to your crim law prof.

  31. bobow

    On a final note, and I hate to beat a dead horse, I have never liked the argument that includes a “means to an end”. Those arguments have never seemed to result in a good outcome.

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