Cruz was referring to a letter Holder wrote to Sen. Rand Paul (R-Ky.) that read, “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.”
But by the end of Cruz’s interrogation, Holder finally conceded it was not in fact constitutional.
Cruz first asked Holder in front of the senate Judiciary Committee, “If an individual is sitting quietly in a cafe in the U.S., in your legal judgment, does the Constitution allow a U.S. citizen on U.S. soil to be killed by a drone?”
“If that individual is not posing an imminent and immediate threat of death or bodily harm,” he added.
Holder said, “On the basis of what you said, I don’t think you can arrest that person.”
Cruz then tried to pose the question differently.
“If the person is suspected to be a terrorist, you have abundant evidence that he is a terrorist and he is involved in terrorist plots but at the moment he is not pointing a bazooka at the Pentagon, does the Constitution allow a drone to kill that citizen?” he asked.
“I would not think that would be an appropriate use of any kind of lethal force,” Holder responded. “We would deal with that in a way we would typically deal with a situation like that.”
But before he could finish, Cruz asserted, ”My question wasn’t about appropriateness or prosecutorial discretion. It was a simple legal question.”
Later, when Cruz tried to move on from the subject after Holder refused to give a direct answer, Holder finally admitted, “Translate my ‘appropriate’ to ‘no.’ I thought I was saying ‘no’.”
“After much gymnastics, I am glad to know that it is the opinion of the Department of Justice that it would be unconstitutional,” Cruz finished.
Meanwhile, Senator Rand Paul was on the Senate floor filibustering John Brennan’s nomination to lead the CIA over the Obama administration’s refusal to say in writing that it would not send drones after American citizens. Multiple times during the filibuster the Texas Senator came on to give Paul encouragement and give him a break from speaking. Cruz praised Paul for his leadership on the issue of drone strike legality, calling him a “modern Mr. Smith Goes to Washington.”
“And my only regret is that there are not 99 of your colleagues here today standing with you in defense of the most fundamental principle in our Declaration of Independence and in our Constitution — namely that each of us is endowed with certain unalienable rights by our Creator and first among them is life,” Cruz told Paul toward the beginning of the filibuster. “The right to life and the right not to have life arbitrarily extinguished by our government without due process of law.”