Eric Holder: Yes, in extraordinary circumstances, the president can order Americans killed on American soil

Quite a headline, huh? But I think this says more about Holder’s political skills, or lack thereof, than about the White House instituting any egregious new policy.

Remember when Rand Paul said he’d demand an answer from John Brennan on whether the president can kill Americans on American soil? Brennan finally got back to him today and told him that the CIA doesn’t target people inside the U.S. — but that he should ask the DOJ for a formal statement of policy. Here’s the formal statement from Holder, via Adam Serwer at Mother Jones:

As members of this administration have previously indicated, 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. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorism-related offenses in our federal courts.

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no president will ever have to confront. It is possible, I suppose, to imagine an extraordinary circumstance 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. 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 like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

So the president reserves the right to use military assets to repel an attack on the mainland U.S. a la Pearl Harbor or 9/11. I … don’t think anyone seriously questioned that, and even if they did, the politics of facing an attack like that would impel the president to act notwithstanding public opposition. I wrote about this a few weeks ago when Paul first went after Brennan:

But look. For obvious reasons, turning the drone guns on citizens here at home would be extremely politically dangerous for any president, even one like The One who can count on a media cushion. Americans are sufficiently creeped out at the thought of being tracked by the eye in the sky that state and local governments have started passing laws banning surveillance drones. Imagine what the reaction would be to news of someone being incinerated on the highway by a Hellfire because the feds were worried about him. If it happened, the circumstances of the impending attack would need to be so dire and urgent that the president could reasonably expect he’d [be] commended for taking action rather than vilified.

We learned just yesterday that Americans are more comfortable with drone strikes against U.S. citizens on U.S. soil than anyone might have expected, but it’s one thing to be comfortable in the abstract and another to be comfortable in a concrete case. Example: Imagine the feds get a tip that there’s an 18-wheeler packed to the brim with explosives by Al Qaeda and headed for New York City. They can get a drone there to intercept it on the outskirts, before it enters a densely populated area, but they’re only 75 percent sure of their intel. What does O do, hold off and hope that the cops get there before the bomb goes off or err on the side of neutralizing a mega-attack by firing a missile at the cab and hoping the intelligence is right? If he chooses the latter option and the intel proves bad, there’ll be outrage but it’ll be mitigated by the fact that he did his best in a horribly difficult situation to protect Americans. If he chooses the first option and the bomb goes off, and then the public finds out that he could have gotten a drone there to take out the truck, he’ll never hear the end of it. “We weren’t sure about the intelligence” will do him virtually no good. This is all basic counterterrorism politics; the novelty is that the head of the DOJ, oddly, felt obliged to explicitly carve out an exception to the “no strikes on U.S. soil” policy for precisely this sort of 9/11 scenario. All that’s going to do is creep people out and make them wonder why the country’s second-highest law enforcement officer is giving any thought at all to which “extraordinary circumstances” might justify government killings. Just say, “As a rule, the government will not use military assets on U.S. soil” and then if something like Pearl Harbor happens necessitating that that rule be broken, trust the public to cut you some slack afterward in the name of countering an act of war.

Incidentally, the White House finally decided today to share its top-secret memos on drone policy with the Senate Intel Committee provided that they stay secret — coincidentally, on the same day that the U.S. is denying responsibility for two mysterious air attacks in Pakistan in early February. If you read this post a few weeks ago, you know that those two developments might not be unrelated. Exit question: If an attack on American soil is sufficient to warrant emergency military action by the president against hostiles, why wasn’t it enough in Benghazi?

Update: Rand Paul: “The U.S. Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening – it is an affront the Constitutional due process rights of all Americans.”