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Warning: spoilers for the TV show Designated Survivor ahead.

The American TV drama Designated Survivor is set in a hypothetical world where terrorists have successfully attacked the State of the Union address and killed nearly all of the senior members of the US government. Many early episodes have plot points centering around Constitutional issues and Presidential powers that Americans will remember from their school days (e.g. the ability of the President to federalize units of the National Guard). Based on those early episodes, it's clear the show is attempting to be accurate in its depiction of existing US law, and not just making stuff up wildly or in an alternate reality with different laws.

In S1E11 of the show, police officers have surrounded a building where they believe a terrorist is hiding. They are on US soil, and believe that the occupant of the building is the person who attempted to assassinate the president several hours earlier. It is unclear if they know the nationality/citizenship status of the terrorist.

The (Acting) President of the United States has an open line of communication to the on-scene police commander from a bunker in the White House. Other characters explain that standard procedure is for police to attempt to take the alleged terrorist into custody so that criminal charges may be brought, and for police to not fire their weapons unless attacked. The President gives a preemptive order for police to kill the suspect even if a non-lethal option is available. His advisors object, but he overrules them, explicitly commanding them to "shoot to kill."

The show set things up to feel sort of like a Commander-in-Chief giving orders to a military unit in a war zone overseas, but ultimately, the scenario was a domestic police operation. So, is this something a President can actually do, from a legal standpoint? Or did the show decide to ignore reality in the service of the plot this time?

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The show ignored the existing legal framework.

Almost all U.S. police officers are employed by state and local governments and do not report directly to the President, even in an emergency.

A small number of law enforcement officers are federal employees with a direct line of command to the President (e.g. the Secret Service and the security guards in the General Services Administration and TSA officers), but a law enforcement officer, unlike a member of the military or a CIA officer, does not simply follow the orders of the civilians to whom his superiors are responsible without the intervention of their law enforcement superiors based solely upon that civilian's whims and directions the way that a soldier would.

The Secret Service has some limited authority to direct and even deputize local law enforcement officers in pursuit of their missions, but that would probably not extend to the kind of national security kill order contemplated in this episode.

This said, lots of law enforcement officers are ex-military, most law enforcement agencies has a quasi-military organizational structure, and in the extreme circumstances of Designated Survivor, it wouldn't be shocking for law enforcement officers to follow their natural military chain of command intuitions rather than the law that actually applies in these situations. Law enforcement officers are personality types that are very deferential to authority which is a natural counterpart to support for their hierarchical view of the world that endows them with their own authority. There is no one in the loop to play devil's advocate for the suspected terrorist.

But, strictly speaking, the proper protocol within the U.S. would be to have a CIA agent make the strike (because the military is prevented by the posse comitatus act from doing so, unless these events counted as an "insurrection" which they very well might in which case the military could be involved), rather than a law enforcement officer.

Incidentally, the U.S. Supreme Court has basically held that the citizenship of the suspected terrorist is irrelevant, even though policy makers in all of the Presidential administrations since 9-11 have not been very comfortable with that state of the law and have sought to distinguish U.S. citizens from non-U.S. citizens in their own policies.

  • TSA employees are not law enforcement officers, however much they may pretend otherwise. – Tim Lymington Mar 18 '17 at 9:52
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    @TimLymington The TSA has a variety of employees, some of whom are law enforcement officers. For example, air marshals are law enforcement officers who are part of the TSA. en.wikipedia.org/wiki/Federal_Air_Marshal_Service – ohwilleke Mar 18 '17 at 10:09
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    @PatrickConheady Process of elimination. "Kill orders" are carried out under current practice by either active duty military personnel (including activated reserves and guardsmen) or CIA operatives; not by civilian law enforcement. The military is not permitted to operate in the U.S. in this capacity. That leaves the CIA. – ohwilleke Mar 18 '17 at 13:30
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    This was mostly the answer I expected. I'm torn between being happy I was right, and also that the President/government can't do this, and sad that a show I was enjoying is veering into Hollywood fantasyland. As for the CIA bit though, I was under the impression that they didn't engage in domestic activity. Not active operational stuff anyways. – DSFan Mar 18 '17 at 17:48
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    I thought the CIA wasn't allowed to operate internally to the US either, unless in a co-venture when they had FBI alongside. – mark b Mar 20 '17 at 19:49

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