Incapacitating Terrorists in the US: the FBI’s Job

Remember when I suggested that a targeted killing in the US would look a lot like the killing of Imam Luqman Abdullah in 2009 (though I’m not saying that Abdullah’s killing was a targeted killing), in which bunch of FBI’s Hostage Rescue Team members flew in from around the country, set up an “arrest” operation, sicced a dog on him, and then shot him 21 times as he tried to hold off the dog?

Here are three assertions in the letters Eric Holder and John Brennan made in response to Rand Paul’s question about whether “the President has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial,” each addressing a different agency which might conceivably conduct targeted killing.


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 Untied States.


I can, however, state unequivocally that the agency I have been nominated to lead, the CIA, does not conduct lethal operations inside the United States — nor does it have any authority to do so. Thus, if I am fortunate enough to be confirmed as CIA Director, I would have no “power” to authorize such operations.


As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat. We have a long history of using the criminal justice system to incapacitate individuals located in our country who pose a threat to the United States and its interests abroad. Hundreds of individuals have been arrested and convicted of terrorist-related offenses in our federal courts.

All three answers are interesting. Paul is upset that Holder said the President could use lethal military force in the US. Holder invoked Pearl Harbor and 9/11, during the latter of which the Vice President, on his sole authority, ordered DOD to shoot down domestic aircraft in the US. If Paul has a problem, he should probably also have a problem with Dick Cheney’s order on 9/11.

Brennan’s answer about the CIA is a masterpiece of misdirection. Brennan doesn’t answer whether the CIA can operate in the US, which is broadly covered by other questions Paul asked so easily could and should have been included in his answer. He uses very interesting scare quotes around power. He makes it very clear that this answer does not address the legal question of whether the CIA could do this (he says DOJ will answer that, but Holder in fact didn’t address whether CIA could be ordered to kill in the US). Most importantly, however, Brennan answers a question Paul didn’t answer: Whether the CIA Director could order the CIA to use lethal force in the US.

The CIA, of course, conducts covert operations based on Presidential authorization, not CIA Director authorization. And Brennan stopped well short of answering whether the President could authorize the CIA to conduct lethal operations in the US, and whether the Executive Branch believed the President could authorize such strikes based on his own authority. And as I said, Holder quite simply didn’t answer that question at all.

Finally, though, I love the way Eric Holder discusses trials only after talking about using law enforcement — like the FBI — to incapacitate terrorists and other evil-doers twice.

Holder didn’t comment, one way or another, on whether the President could authorize law enforcement authorities to conduct targeted killings in the US. And since the precedents for using lethal force in the white paper are domestic law enforcement cases, that use of lethal force would come with the most cover from legal precedent.

In short, none of these assertions constitutes a denial that a particular agency could, under certain circumstances, could conduct targeted killing in the US. All they say, in conjunction, is that were a targeted killing to be conducted in the US, it would most likely be conducted by law enforcement.

8 replies
  1. lefty665 says:

    Once you decide something is legal everything else is just a policy decision. Prohibit, require, FBI, CIA, JSOC… are all downstream from the assertion that it is a simple administrative decision to kill US citizens on American soil.

    We don’t need no steenkin’ judicial or legislative branches, we can do it all ourselves. It’s more important than a stain on an intern’s dress.

    Paul may be a dingbat, but he’s asking the right questions. Precious damn few Dems are.

  2. Wondering says:

    What does “incapacitate” boil down to, in detail? Can any incapacitants be fired from drones? How long could nonlethals be applied to one person? Could the application of non-traditional weapons be combined with constant, intrusive surveillance? I know these are speculative questions, not comments, yet One keeps wondering what, exactly, was it that former secretary Panetta found so disturbing that he cancelled the program immediately? And what are the offenses specifically that require incapacitation? Who knows?

  3. earlofhuntingdon says:

    “Incapacitate’s” definition is broad. It means to make incapable of legal or physical action. Given the Clintonian parsing of action verbs prevalent in Washington, one might conclude that the CIA includes “kill” in that definition. For the public, it’s a quandary, much like deciphering Captain Reynaud’s description of Ugati’s death in his custody as either “committed suicide” or “died trying to escape”.

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