By Robert Romano
“Under U.S. law, United States citizens cannot be tried in military commissions.”
That was White House Press Secretary James Carney on the Obama Administration’s decision not to treat Dzhokhar Tsarnaev as an unlawful enemy combatant following the Boston Marathon bombings.
What a difference two months can make.
Just in February, NBC News famously revealed a Department of Justice memorandum outlining the legal basis for using lethal military force against U.S. citizens overseas. Then, the Administration argued, “Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clause… that individual’s citizenship would not immunize him from a lethal operation.”
When Senator Rand Paul asked now-Central Intelligence Agency Director John Brennan if lethal force could be used against U.S. citizens on domestic soil, he eventually got a reply from Attorney General Eric Holder that “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.”
Now, the White House is saying that a citizen cannot even be tried by a military commission. For Carney’s part, he may have been alluding to the 1866 Supreme Court decision Ex Parte Milligan that ruled military tribunals “can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed” if Congress had not established such a court for citizens.
As radio talk show host Mark Levin noted in his April 22 broadcast, Congress has not established such a tribunal for citizens. Particularly under the 2006 Military Commissions Act, which only applies to non-citizens. Meaning, Levin noted, there is no legal basis for Tsarnaev to be tried in anything but a civilian court.
But if that’s the case, can a citizen even be deemed an unlawful enemy combatant, as Senator Lindsey Graham urged Obama to treat Tsarnaev as?
If the government cannot even put a citizen on trial in front of a military commission, what makes the Obama legal team think military force could be used against a citizen on U.S. territory? How and when can a citizen be labeled an unlawful enemy combatant? In war, combatants are not usually offered the possibility of a trial or of due process. They are killed on the battlefield.
That made Senator Paul’s question highly critical. Could war powers extend to U.S. citizens on American soil? And under what circumstances?
Holder’s original response had prompted Paul to mount his now-unforgettable filibuster against Brennan, which, after it drew widespread attention and support from the American people, Paul got an additional response from Holder. Wrote Holder, “It has come to my attention that you have now asked an additional question: ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’”
He answered, “The answer to that question is no.”
That seemingly settled the immediate question, all the while affirming the Justice Department’s stated position it could still kill citizens in the U.S., so long as they were deemed to be enemy combatants.
Certainly, nobody questions that someone who poses an immediate threat to public safety and law enforcement could in fact be killed lawfully, even without being declared an enemy combatant. That was certainly the case with Tamerlan Tsarnaev, Dzhokhar’s older brother who was killed in the midst of a gun battle with police.
The question gets stickier when the suspect no longer poses an immediate threat upon capture and arrest, or generally when there is no active combat situation the person is engaged in.
It therefore is still unclear how the White House or any subsequent administration would determine if a citizen is an unlawful enemy combatant. Which, if a citizen cannot be treated as such under current law, then when can he or she be subject to military force on U.S. soil?
We still don’t know. Certainly not based on Eric Holder’s vague responses. Nor under the Military Commissions Act, which again only provides for non-citizens to be labeled unlawful combatants.
All of which means Senator Paul’s original question still has not been answered. Not really. But it should be.
Robert Romano is the Senior Editor of Americans for Limited Government.