Feinstein, who also serves as Chair of the Senate Intelligence Committee, cited the need for ‘vigorous oversight’ regarding the “legal underpinnings” of clandestine activity and has previously urged the Administration to be more forthcoming. Feinstein told Holder that she believed the Administration ‘had good solid legal rational for the use of drones” with ‘very sound’ legal opinions and, referring to Sen. Rand Paul’s filibuster underway on the Senate floor, did not believe it was ‘true or correct’ that an American citizen “walking down the street or eating in a café in this country can be targeted for elimination.” Paul’s filibuster was prompted by a loosely-worded March 4th letter from Holder attempting to outline Administration policy regarding the use of drones domestically on American citizens.
Holder, who was not sworn in prior to his testimony (usually providing an essential legal framework for any Congressional witness), further agreed that there is a ‘greater need for transparency’ and "appropriately sharing information". Assuring the Committee that “I have heard you, the President has heard you,” Holder stated that the President “feels strongly” and, within the next few months, will be ‘speaking about this’.
It is not every day that Republicans in the Senate give a good reason to applaud their legislative behavior but Holder’s Committee appearance provided an opportunity for the newly-elected, already-controversial Sen. Ted Cruz (R-Texas) to question the Attorney General on the Administration’s drone policy:
Cruz: “I’d like to start with the topic of drones. In your response to Sen. Paul yesterday, you suggested there may well be ‘ circumstances in which it is permissible to use drones to target a US citizen on US soil. I’d like to explore those circumstances; in particular you pointed to two, Pearl Harbor and 911 – both of which were extreme military attacks on the homeland. I want to ask a more specific question. If an individual is sitting quietly at a cafe in the United States, in your legal judgment, does the Constitution allow a US citizen on US soil to be killed by a drone?”
Holder: …” for sitting in a café and having a cup of coffee?”
Cruz: “If that individual is not posing an imminent and immediate threat of death or bodily harm, does the Constitution allow a drone to kill that individual?”
Holder: “On the basis of what you said, I don’t think you can arrest that person."
Cruz: “The person is suspected to be a terrorist, you have abundant evidence he is a terrorist, he is involved in terrorist plots but at moment he’s not pointing a bazooka at Pentagon. He’s sitting in a café; overseas the United States government uses drones to take out individuals when they are walking down a path, sitting in a café. If a US citizen on US soil is not posing an immediate threat to life or bodily harm, does the Constitution allow a drone to kill that citizen?”
Holder: “I would not think that would be appropriate use of any kind of legal force. We would deal with that in the way that we typically deal with a situation like that ….”
Cruz: “With respect General Holder, my question wasn’t about appropriateness or prosecutorial discretion. It was a simple legal question. Does the Constitution allow a US citizen on US soil who doesn’t pose an imminent threat to be killed by the us government?”
Holder: “I do not believe, again, you have to look at all the facts but on the facts that you’ve given me, this is a hypothetical. I would not think that in that situation, the use of drone or legal force would be appropriate because….”
Cruz: “General Holder, I have to tell you I find it remarkable that in that hypothetical, which is deliberately very simple, you are unable to give a simple one word, one syllable answer - no. I think it is unequivocal that if the US government were to use a drone to take the life of a US citizen on US soil and that individual did not pose an imminent threat that that would be deprivation of life without due process…”
Holder: “Maybe I’m not being clear. I said the use of legal force; ….use of drones, guns or whatever else would not be appropriate in that circumstance.”
Cruz: “You keep saying appropriate. My question isn’t about propriety. My question is about whether something is constitutional or not. As Attorney General, you are chief legal officer of United State. Do you have a legal judgment on whether it would be constitutional to kill a US citizen on US soil in those circumstances?”
Holder: “A person who is not engaged as you describe, this is the problem with hypotheticals; the way in which you have described it, this person sitting at a café not doing anything imminently, the use of legal force would not be appropriate, would not be …”.
Cruz: “I find it remarkable you will still not give an opinion on the constitutionality. Let me move on to the next topic.”
Holder: “Let me be clear. Translate my ‘appropriate’ to ‘no’, I thought I was saying no, all right?”
Cruz: “I am glad that, after much gymnastics, I am very glad to hear that it is the opinion of the Department of Justice it would be unconstitutional to kill a US citizen on US soil if that individual did not pose an imminent threat. That statement has not been easily forthcoming. I wish you had given that statement in response to Sen. Paul’s letter asking you it. I would point out that I will be introducing legislation in the Senate to make clear that US government cannot kill a US citizen on US soil absent an imminent threat and I hope, based on that representation the Department will support that legislation.”
Holder: “Well, that’s totally consistent with the letter I sent to Sen. Paul. I talked about 911 and Pearl Harbor - those are the instances where I said it might possibly be considered but other than that, we would use our normal law enforcement authorities along those lines…...”
Inexplicably, the Attorney General appeared unable to grasp the distinction between his use of what is ‘appropriate’ and what is Constitutional.