Death or due process? 57

The government of a democratic country has two main duties: to protect it from attack by external enemies, and to protect every individual within its borders by upholding the law. 

If a conflict should arise between the two, which should take precedence?

Hypothetical: The president is informed that – once again – hijacked civil aircraft are being flown to destroy buildings in New York and Washington, D.C.

Should the president give an order to shoot them down, although they are full of innocent US citizens?

We ask this in connection with the question of the moment: Should the president have the power to make a drone strike against a US citizen, or against anyone on US soil, who is known to pose an imminent lethal threat?

The Attorney General’s reply is a guarded yes:

Attorney General Eric Holder Tuesday stopped short of entirely ruling out a drone strike against an American citizen on U.S. soil — without trial.

Holder’s comment came in a letter to Sen. Rand Paul. Paul had sent a letter to President Obama’s CIA director nominee John Brennan asking for the administration’s views on the president’s power to authorize lethal force.

In the letter, Holder said “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.”

In a separate letter, Brennan told Paul that the CIA has no such authority.

To protest Eric Holder’s reply, and to delay confirmation by the Senate of John Brennan’s appointment as director of the CIA, Rand Paul staged a thirteen hour filibuster yesterday.

It was a stalwart performance, but is he right or wrong to take a principled stand against such a drone strike (or strike by other lethal means to the same end)?

We hate to find ourselves on the same side of any question as Eric Holder even momentarily. (In addition to many other reasons, we think it was grossly and inexcusably dishonorable of him not to resign after he was impeached.) But we find ourselves in agreement with him that a lethal military strike within the United States under extraordinary circumstances (at least of the kind we have hypothetically posed) could be justified. We don’t see, however, that the Constitution sanctions it, or that it can be said to conform to existing laws.

So which is more damaging to a nation under the rule of law: the government’s allowing a mass murder to be committed, or its desecration of the law – so setting a disastrous precedent?

We would like to know readers’ thoughts on this question.