Obama drone progam's potential targeted killing of American citizens abroad opens dangerous legal slipperly slope

This is a rush transcript from "On the Record," February 5, 2013. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: A secret Justice Department memo claiming it is legal for the U.S. government to kill its own citizens abroad -- that is, if an informed high-level U.S. official believes they are senior al Qaeda leaders or engaged in operations aimed at killing Americans.

Now, the memo lays out a three-part test that would make the targeting killings of Americans lawful. The suspect must be an imminent threat. Capture of the target must be infeasible. And the strike must be conducted according to law of war principles.

Congressman Trey Gowdy joins us. Nice to see you, sir.

REP. TREY GOWDY, R-S.C.: Good to see you also.

VAN SUSTEREN: OK, so what do you think, Congressman? President Obama is opposed to torture. Under -- he says it doesn't -- under constitutional reasons, yet he thinks this one's OK.

GOWDY: It's kind of bitterly ironic. You can't torture them, but you can just kill them. And you know, there was also a lot of criticism when we took out FISA and some of the reauthorizations. Our friends on the other side of the aisle did not like us being able to listen to phone conversations from non-Americans on foreign soil. But yet you can kill Americans under the 5th and 14th Amendment if a senior DOJ official says it's OK.

I don't have an issue with whether -- from a legal standpoint, with whether or not government can impose the ultimate punishment on people. We do it in capital cases. Police officers shoot fleeing felons...

VAN SUSTEREN: There's a major difference.

GOWDY: Well, yes, there's a lot of differences. You have two attorneys appointed, two trials and a jury of 12 people. That's the procedural due process part. So skip over the substance to due process. The only procedure I see in place here is a high-level senior DOJ official, which may be...

VAN SUSTEREN: Who is that?

GOWDY: ... the same ones that approved Fast and Furious. We don't know who they are! That's why the process is so confidence-uninspiring.

VAN SUSTEREN: Uninspiring? I mean, we have no idea who's making these decisions...

GOWDY: Right.

VAN SUSTEREN: ... just pulling the trigger on killing Americans abroad. We have no idea!

GOWDY: Why could the same analysis not be employed for killing Americans that you suspect are part of al Qaeda on American soil? If you're going to use the 5th and 14th Amendment to justify it, why can you not do it on American soil? What's the difference?

VAN SUSTEREN: Have you asked for any documents? I mean, this -- this was a leaked document that one news organization got. Have you asked for any documents because we -- you know, to find out, you know, more behind this?

GOWDY: Yes, ma'am. Judge Ted Poe and I -- Judge Poe is from Texas -- we wrote DOJ several weeks ago saying, What legal analysis do you rely upon to be able to reach this conclusion? And we have heard crickets since then.

So ordinarily, I'm not a huge fan of leaked documents, but all we know in terms of this legal analysis is what was leaked. Judge Poe and I have yet to hear from DOJ what their constitutional analysis supporting this is.

VAN SUSTEREN: Well, you bring an interesting background to this discussion. You're a former assistant United States attorney, worked for the Justice Department, essentially, as a former AUSA. Is there any way in your mind you can justify this?

GOWDY: Well, I'm also a former state DA that sought the death penalty seven different times. And when the government seeks to kill one of its citizens, it is a huge deal. It is -- it takes years, if not decades, to carry out the sentence. And we're talking about heinous crimes.

Here you have a senior, unaccountable DOJ official who makes the determination that recent activities lead him to conclude he's an imminent threat and you can send a drone to kill him, not to torture him but to kill him.

So I am troubled any time government is as non-transparent as this. I mean, this had to be leaked. We didn't know what their thought process was. When government targets its own citizens, I cannot imagine anything more serious than that!

VAN SUSTEREN: What are you going to do about it?

GOWDY: Well, I'm going to get Judge Poe fired up again. I don't know if you know judge Poe from Texas, but he was agitated several weeks ago, before we knew what analysis they were using. And I'm going to ask Chairman Goodlatte if we can get the attorney general to come in and explain to me, using the 5th and 14th Amendments, why this couldn't happen on American soil.

VAN SUSTEREN: Well, you know, we don't even know -- what's an "imminent harm"? I mean, that's, like -- like, I mean -- and no one wants terrorists...

GOWDY: According to whom?

VAN SUSTEREN: According to whom. I mean, one of the -- one of the people who was killed by a drone was a 16-year-old boy, who was the son of someone that we suspected of -- had pretty good reason to believe his father was a terrorist. His father was killed, as well. But a 16-year-old boy.

GOWDY: Innocent, totally innocent bystander. Sometimes in war -- and this is an unconventional war, so I want to try to be fair with my analysis. It's not a traditional battlefield. Having said that...

VAN SUSTEREN: But it's killing Americans.

GOWDY: ... we did not elect senior DOJ officials to make these decisions. Congress gave him a declaration of war, gave it to President Bush, actually. He needs -- if he's going to use that declaration to target American citizens on foreign land and have them killed without a judge, a jury or any semblance of 5th Amendment due process, at a minimum, Congress on both sides of the aisle -- Greta, the same folks who didn't like Bush torturing people, they ought to be outraged that their president is killing people!

So if anything can be bipartisan, it ought to be the desire of the House and Senate Judiciary Committees to have DOJ come in an explain -- what does the word "recent" mean? What -- what is the definition of "activities"? Who is this high-level DOJ official?

VAN SUSTEREN: And how do you get your information and how do we know if it's of any value? We've seen a lot of bad information.

GOWDY: Usually, we have to go to court to get information from DOJ.

VAN SUSTEREN: Congressman, nice to see you, sir. Always nice to see you.

GOWDY: Yes, ma'am. Thank you.