Eric Holder Invokes Article II in Suggesting Congress Can’t Legislate Lethal Force

As I lay out in this Salon post, Eric Holder told Chuck Grassley that Article II of the Constitution would make probably any attempt to limit the use of lethal force in the US unconstitutional.

 Chuck Grassley, R-Iowa, asked Holder whether Congress could prohibit the targeted killing of Americans in America. “Do you believe Congress can pass a law prohibiting POTUS to use lethal force on U.S. soil?” he bluntly asked, explaining he meant the prohibition would apply only where a person did not present an imminent threat.

“I’m not sure that such a bill would be constitutional,” the attorney general responded. “It might run contrary to the Article II powers that the president has.” Article II is the section of the Constitution that lays out the president’s authority as commander in chief of the military.

Holder went on to embrace a view of the AUMF (as he has before) that ignores Congress’ refusal in 2001 to authorize the use of military force in the US.

Holder embraced a view of the 2001 Authorization to Use Military Force that completely ignores the legislative history of the law that authorized the war against al-Qaida. “We didn’t exempt the homeland in the AUMF did we?” Lindsey Graham, R-S.C., asked the attorney general, in a question setting up his support for presidential use of lethal force in the U.S. “No,” Holder replied, “I don’t think we did.”

The attorney general may believe Congress authorized the use of lethal force in the U.S. with the AUMF, but former Senate Majority Leader Tom Daschle has made it clear that Congress refused to authorize military force in the U.S. “Literally minutes before the Senate cast its vote,” Daschle revealed in a 2005 Op-Ed that described the legislative process behind the AUMF, “the [George Bush] administration sought to add the words ‘in the United States’” into the authorization. Such a change, Daschle continued, “would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens.”

Back in 2001, Congress very specifically refused to authorize lethal force against Americans.

It has long been clear that the Administration believed — as John Yoo did — that nothing can limit their authority in the war against terror. But these were rather more blunt admission than normal.

17 replies
  1. JohnT says:

    There’s a word for it

    Traits that are common among psychopathic serial killers—a grandiose sense of self-worth, persuasiveness, superficial charm, ruthlessness, lack of remorse and the manipulation of others—are also shared by politicians and world leaders. Individuals, in other words, running not from the police. But for office. Such a profile allows those who present with these traits to do what they like when they like, completely unfazed by the social, moral or legal consequences of their actions.

  2. JTMinIA says:

    I can’t see someone like Scalia paying any attention to any last-minute changes or non-changes to a bill in deciding what said bill authorizes, especially with regard to executive power. A (pretend) textualist would look only at the law as written and see no specific restriction within the AUMF as to where the President can fight those who played any role in before/after/forever what happened on 9/11.

    In other words, I see the Daschle Op-Ed as a red herring with no real weight. But I look forward to be shown to be wrong.

    With that said, I’m hating C-Span for making me like Rand Paul right now.

  3. liberalrob says:

    It might run contrary to the Article II powers that the president has.

    So in “a time of war” the President is transformed into a literal dictator, because the battlefield is potentially anywhere on the planet and he’s the Commander-in-Chief.

    Somehow I don’t think that’s what the Founders had in mind when they wrote Article II. But of course, I forget that they had no conception of a global battlefield; with the advent of ICBM’s and rapid global transportation, the Constitution became a quaint, archaic document that is unable to operate in our modern world. The President simply must have plenary powers in order to keep us safe from the terrorists, as long as there are terrorists out there somewhere.

  4. Snoopdido says:

    At Salon, Emptywheel said:

    “Tuesday, after having finally gotten the administration to share the OLC memos on targeted killing not just for a quick glimpse, but a more lengthy read by legal staff, the Senate Intelligence Committee moved John Brennan’s confirmation forward with 12-3 vote.”

    It may not have been your intention, but the above paragraph gives the impression that all OLC memos on targeted killing were shared, but according to Greg Miller yesterday in the Washington Post (, only OLC memos on targeted killing of Americans were shared:

    “In particular, the White House made new concessions over the weekend that will give lawmakers greater access to a collection of classified Justice Department opinions that spell out out the administration’s legal rationale for its campaign of drone strikes on al-Qaeda.

    But the arrangement is confined only to memos on the legal rationale for the targeted killing of Americans accused of joining al-Qaeda and taking part in terrorist plots.

    The administration let committee members see two of those memos earlier this year and has now agreed to show an undisclosed number of additional documents, congressional officials said. The White House also agreed to allow each lawmaker to have one staff member review the documents.

    Sen. Ron Wyden (D-Ore.) and others cited that concession as a reason for supporting Brennan’s nomination after previously threatening to delay or block it.

    Even so, the White House has still refused to grant lawmakers access to other Justice Department memos on the killing of non-American terrorism suspects, a category that accounts for all but a handful of the thousands of militants and civilians killed in the U.S. drone campaign.”

  5. Nic108 says:

    So Article II allows the Executive branch to stop Congress from stopping it from violating the Constitution? Brilliant!

  6. Brennan's pet ferret says:

    Eric Holder thinks you’re stupid. He thinks that if he harps exclusively on Article II, you’ll forget, or simply never notice, that Article VI makes the following the supreme law of the land:

    CCPR Article 4

    “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

    “No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.”

    And even if you read that, Holder thinks, you’ll just sit there with your tongue hanging out and you won’t wonder, Hmm, What are those non-derogable rights? Article 6, What’s that?

    Article 6

    “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

    “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

    “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

    “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”

    Holder knows that servile US judges will repeat whatever stupid shit they’re told. His problem is real courts in legitimate states which will be asked to decide if these malcontents actually threaten the life of the nation; and rule on whether Brennan and Obama playing ‘Eenie Meenie Mynie Mo, catch Awlaki by the toe’ constitutes a competent court; and rule on vaporizing kids of sweet sixteen because their Daddy had that coming.

  7. Valley Girl says:


    JohnT Thanks for Sci Am link. Really interesting reading. What struck me, apart from all else that made sense, were comments such as follow:

    ~The question of what it takes to succeed in a given profession, to deliver the goods and get the job done, is not all that difficult when it comes down to it. Alongside the dedicated skill set necessary to perform one’s specific duties—in law, in business, in whatever field of endeavor you care to mention—exists a selection of traits that code for high achievement.~~

    ~~In a similar (if less high-tech) vein, I asked a class of first-year undergraduates to imagine they were managers in a job placement company. “Ruthless, fearless, charming, amoral and focused,” I told them. “Suppose you had a client with that kind of profile. To which line of work do you think they might be suited?”~~

    I know that following point, which I hope to made coherently, is OT in a way. But, “a selection of traits that code for high achievement”. High achievement is measured by the rules of of the profession itself, and thus to me implicates the mind set and aims of the group as a whole. So, that widens the perspective beyond the individual, and includes the entirety of the entity/ organization itself. A police force; a government agency like CIA; a government entity such as Congress, and so forth. It’s the entire milieu of the itself may well be psychopathic.

    Hope the above makes some kind of sense- I find it hard to explain exactly what I am getting at.

  8. Frank33 says:

    The Aqua Buddha filibuster has gone bipartisan. Senators have forgotten their place and are actually questioning our secret Psychpathic Assassins. It is an actual filibuster, in the former tradition of the Senate, where a Senator filibusters, talks. Or asks questions about criminal wars.

    Our Glorious Majority Leader Harry Reid is trying to stop the filibuster. He wants to keep the flibuster where there is no Senator talking. So it should not be called a “filibuster” if there is no talking. It should be called…3…2…1 SHILLIBUSTER.

    The Shillibuster helps maintain control of the Senate by our corporate and military industrial espionage overlords. Harry Reid has a nice, quiet, domesticated Senate and he wants to keep it that way.

    Senate Majority Leader Harry Reid (D-Nev.) took to the floor at about 4:45 p.m. to try to invoke cloture on the Brennan nomination to allow the vote to happen Wednesday night.

  9. ess emm says:

    So I’m watching C-Span. A lady in pink is coughing *bullshit* as Holder (and Graham) said anything outrageous.

    Also Ted Cruz after 5 minutes of questioning finally got Holder to give an unequivocal NO to the question whether it was constitutional to use a drone to kill a terrorist sitting in a US cafe that didnt pose an imminent threat (whatever imminent threat is).

  10. ess emm says:

    More Grassley-Holder

    Q: Would a imminent catastrophic event justify the use of enhanced interrogation?

    A: No….It is torture and should never be used. It doesnt work.

    Obviously, Holder thinks killing “works”

    Finally, I’m pretty sure Feinstein used Marcy’s number of 21 requests for the targeted killing memos. She also said she thought the reasoning in the memos she’s seen were “sound”.

  11. TheMomCat says:

    I think everyone is missing the argument that by interpreting the AUMF as authority to attack a group or an individual is tantamount to a bill of attainder which is strictly forbidden in [Article I, Section 10, Clause 1 of the Constitution!/articles/1/essays/62/bill-of-attainder%5D

    “In common law, bills of attainder were legislative acts that, without trial, condemned specifically designated persons or groups to death. Bills of attainder also required the “corruption of blood”; that is, they denied to the condemned’s heirs the right to inherit his estate. Bills of pains and penalties, in contrast, singled out designated persons or groups for punishment less than death, such as banishment or disenfranchisement. Many states had enacted both kinds of statutes after the Revolution.”

    In all the articles and comments that I’ve read, no one has addressed this point except to dismiss it out of hand.

    I present it here as a legitimate point of discussion. If I’m wrong about this, please, tell me why.

  12. P J Evans says:

    @ess emm:
    I voted against her in the primary last year; it’s past time she retired, especially if she’s going to be talking shit like that.

  13. ess emm says:

    Feinstein said SSCI is united in wanting the memos. I guess that means Rockafeller, too

    I dont have much use for Feinstein but her remarks at the Judiciary committee were interesting. She said Rand Paul is all wrong. And she couldnt stop herself from helping Holder answer Cruz.

    BTW, an interesting Feinsteinism: impeach = “do whatever a constitutional legislative body does [when the executive does something illegal]”

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