After watching the above video, you can see the level of clarification and re-clarification that Sen. Cruz had to go through merely to get Attroney General Holder to stake himself to a legal position. He finally made the claim that using lethal force against a U.S. citizen on U.S. soil would be unconstitutional if they weren’t posing an immediate threat. Seems pretty cut and dried, doesn’t it? Let’s examine further.
From the Department of Justice white paper obtained by NBC News, which is not a legally binding document, the lines are blurred on this issue.
From page 7 of the white paper, you’ll find this explanation of what constitutes an “imminent” threat.
“First, the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
In the hypothetical scenario Cruz laid out to Holder, he used a person just sitting in a cafe posing no imminent threat. As the above paragraph points out, it doesn’t matter. We don’t require clear evidence. Perhaps that slipped Holder’s mind when he made his statement to Cruz?
The white paper goes on to expound upon what may quantify “imminent” by discussing a window of opportunity, collateral damage, etc. It concludes that a person meeting the requirements of someone posing such a threat would have a track record of continuously plotting attacks against the United States. In other words, yes, the U.S. government has the authority to use lethal force including a drone to kill a U.S. citizen on U.S. soil even when no imminent threat is apparent.
Again, the DOJ white paper is not law. However, it does indicate administration policy. I would say the answer Holder gave is completely unsatisfactory since it contradicts his own written clarification of U.S. policy. It’s unfortunate that Cruz didn’t call him out on this clear difference on stated policy.
I covered this memo leak here – https://spellchek.wordpress.com/2013/02/05/justice-dept-memo-contains-legal-basis-for-killing-of-american-citizens/.