News Senators Press Holder on Use of Military Force on U.S. Soil

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Senators Press Holder on Use of Military Force on U.S. Soil
Mar 6th 2013, 18:19

Evan Vucci/Associated Press

Attorney General Eric H. Holder Jr. addressing the Senate Judiciary Committee on Wednesday.

WASHINGTON — Senators of both parties on Wednesday criticized Attorney General Eric H. Holder Jr. for the secrecy surrounding the Justice Department legal memorandums justifying drone strikes aimed at American citizens, while pushing him to say more about when the Obama administration believes it can use military force on United States soil.

As Mr. Holder came before the Senate Judiciary Committee for a department oversight hearing, the chairman of the panel, Senator Patrick Leahy, Democrat of Vermont, said that he was considering issuing a subpoena to the executive branch to compel it to turn over the Justice Department documents. Mr. Leahy and others have been seeking them for more than a year.

"While the department's success in disrupting threats to national security has been remarkable and its efforts to hold terrorists accountable commendable, I remain deeply troubled that this committee has not yet received the materials I have requested regarding the legal rationale for the targeted killing of United States citizens overseas," Mr. Leahy said. "I am not alone in my frustration or in my waning patience. The relevant Office of Legal Counsel memoranda should have been provided to members of this committee. It is our responsibility to ensure that the tools at government's disposal are used in a way that is consistent with our Constitution, laws and values."

The ranking Republican on the panel, Senator Charles Grassley of Iowa, also expressed frustration over the administration's refusal to allow access to the documents, which the administration recently showed to members of the Senate Intelligence Committee as part of its effort to win confirmation of John O. Brennan to be the next director of the Central Intelligence Agency.

He noted that the Judiciary Committee had been shown secret documents about how surveillance laws are interpreted, so there was recent precedent for sharing national security matters with it.

"Despite opinions of this administration, and the previous one, to the contrary, Congress has a significant role to play in conducting oversight of national security matters," Mr. Grassley said. "We have the right to ask for and receive classified information — through appropriate channels and subject to protections — to determine if the activities of the executive branch are appropriate."

Mr. Holder said that he was "sympathetic" to the committee's desire to see the documents, but that the decision to share them was not his alone. He said the administration was continuing to struggle with how to provide more information about targeted killings and drone strikes, and he said that President Obama would probably be saying more about such issues in coming weeks.

"We've talked about a greater need for transparency," he said.

One focus of the hearing was the extent to which the administration believed it could authorize the military to use lethal force, like drone strikes, against American citizens on domestic soil. Earlier this week, Mr. Holder sent a letter to Senator Rand Paul, Republican of Kentucky, saying that the question was "entirely hypothetical" and "unlikely to occur," but that it was possible to imagine circumstances in which it would be appropriate, such as during an attack like the one at Pearl Harbor or the ones on Sept. 11, 2001.

Senator Ted Cruz, Republican of Texas, suggested a hypothetical situation in which a terrorism suspect was not presenting an imminent threat — like "sitting in a cafe," rather than pointing a weapon — and asked whether it would be unconstitutional to simply kill that person.

Mr. Holder repeatedly said that would not be an appropriate time to use lethal force rather than arresting the suspect, but Mr. Cruz said he was asking a "simple question" about whether it would be legal, not its propriety.

Finally, Mr. Holder said "translate my 'appropriate' to 'no.' I'm saying 'no.'"

Mr. Cruz replied that he was glad that "after much gymnastics," he had obtained the simple answer, adding that he wished Mr. Holder had given the same statement in the letter to Mr. Paul.

Mr. Holder also emphasized that inside the United States — unlike tribal regions of Pakistan or Yemen — it is feasible to capture a terrorism suspect.

Other senators, however, defended the notion that some use of military force on United States soil would be lawful.

Senator Dianne Feinstein, the California Democrat who is the chairwoman of the Intelligence Committee, criticized the administration for not being more forthcoming in providing the information Congress needs to perform its oversight, noting that it was able to ask questions about a "white paper" summarizing the administration's legal views only because it had leaked. But she defended the notion of using military force in a hypothetical case like shooting down a plane hijacked by terrorists.

Senator Lindsey Graham, Republican of South Carolina, praised the Obama administration for its use of drone strikes abroad and, as he has in the past, offered his view that the wartime authority Congress granted to use military force against Al Qaeda extended to domestic soil. Mr. Holder indicated that he agreed with that proposition.

Former Senator Tom Daschle, the South Dakota Democrat who was Senate majority leader at the time of the Sept. 11, 2001, terrorist attacks, has written that the Bush administration specifically asked Congress to add the words "in the United States" to the description of the force it was authorizing, and that lawmakers refused.

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