Eric Holder's Definition of Due Process: As Much As We're Willing to Provide

In his speech at Northwestern University yesterday (as Lucy Steigerwald noted), Attorney General Eric Holder said the "due process" required before killing suspected terrorists in other countries, including American citizens, is not the same as the due process required for criminal defendants in the United States. He laid out three sufficient (but perhaps not necessary) conditions for the targeted killing of "a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans" (as Anwar al-Awlaki was alleged to be):

First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The first condition presupposes that the target is indeed "a senior operational leader of al Qaeda or associated forces," which is the sort of thing the government would have to prove in a criminal trial. As for the imminence of the threat posed by the alleged terrorist, the "thorough and careful review" to which Holder refers is carried out entirely by the executive branch, with no role for the judiciary or the legislature (although "the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens"—after the fact, apparently). The feasibility of capture likewise is determined entirely by the president and his men. That condition (assuming it is necessary) seems to rule out targeted killings within this country, where capture presumably would be feasible. Otherwise there do not seem to be any geographical limits:

Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats. 

This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

In short, Holder claims that Congress, by authorizing the use of military force against those responsible for the 9/11 attacks, empowered the president to order the execution of anyone he identifies as a terrorist, wherever that person may be found (with the possible exception of the United States). If presidents were infallible and always virtuous, there would be no problem with this policy; since they are neither, we should perhaps be wary of letting them decide exactly how much process is due for those they deem deserving of death.

More on the president's license to kill here.

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  • Matrix||

    They've been assassinating Americans for decades. They just want to be able to make it public and 'legitimize' it.

  • Hater||

    FUCK HOLDER!!!!

  • Matrix||

    haters gonna hate

  • sloopyinca||

    I want to piss on you.

  • db||

    Due process causes a lot of water damage. Better to avoid it altogether.

  • ||

    +100

  • BakedPenguin||

    Is he being targeted by a Scanner?

  • ||

    All right. We're gonna do this the scanner way. I'm gonna suck your brain dry! Everything you are is gonna become me. You're gonna be with me, BP, no matter what. After all, brothers should be close, don't you think?

  • BakedPenguin||

    The future? You murdered the future.

  • moop||

    all your base are belonged to us

  • Invisible Finger||

    I thought it was Count Floyd for a sec.

  • Loki||

    Shorter Holder: TOP. MEN. are in charge of determining who may be killed by order of the president. And as always: fuck you, that's why.

  • ||

    "Screw process." Sounds like the Obama Doctrine to me.

  • ||

    Similar to the Bush Doctrine, except with more drones. Send in the drones.

  • Anonymous Coward||

    First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

    I didn't know Jimbo Kern from South Park worked in the Justice Department:
    They're Coming Right For Us!

  •  EH||

    I've you've got nothing to hide, you've got nothing to fear.

  • Number 2||

    I am stunned, but not suprised, that the mainstream media are paying so little attention to this story, but are going gaga over Rush Limbaugh calling someone a slut.

  • Lady Gaga||

    HEY!!

  • Alex Jones||

    It's the same story.

  • ||

    "Lewd process."

  • ||

    Our government has both a responsibility and a right...

    So the government has rights? Imbued by it's creator no doubt?

  • sloopyinca||

    I'm gonna don a tinfoil hat here and say these comments by Holder are being made to get people on the left worked up.

    The man ran the largest fuckup in intel history with F&F. This may well just be a way to get criticism for another reason, igniting a firestorm that results in his resignation. And with that comes full immunity from prosecution for F&F.

    Hows about that?

  • Realist||

    Caption: Now look into my brown eye...!

  • ||

    ". . .First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States. . ."

    Except. . . the target didn't pose an imminent threat of violent attack - He was not even near any US assets, let alone the country.

  • ?||

    U.S. soldiers aren't an asset?

  • db||

    We have U.S. soldiers in Yemen?

  • ?||

    Probably..

  • jasno||

    Yeah, this. What the fuck did that guy(or his sons) even do? Preach against America? Is that grounds for drone assassination now?

  • John C. Randolph||

    I guess Obama's old preacher Jeremiah Wright better watch out, then.

    Come to think of it, by the criteria Holder's pushing, Obama himself is fair game since he spent a decade or so attending a church where the asshat on the pulpit was yelling "god damn America."

    -jcr

  • ||

    I'm curious: is there any other form of recognized "due process" that is provided entirely by the executive branch, with no possibility of judicial review?

    Sure, lots of due process that I am aware of starts with "agency review", but all of it can be taken to court if necessary.

    I can't think of anything that we do now that fits Holder's definition of due process without any possibility of judicial review.

  • ||

    I do recall a GOP Congress attempting to strip jurisdiction from the courts from reviewing certain GWB decisions. Though that was an explicit effort by two branches to overrule a third (see also: Indiana legislature voting to overturn the Indian Supreme Court's "you can't use violence against a cop who's illegally entered your home") on a particular case.

    This is the executive acting alone, though perhaps Holder and Obama believe in that "unitary executive" thing.

  • John C. Randolph||

    There is no such thing as due process that doesn't allow the accused a chance to challenge the charges against them. Holder is full of shit, and he knows it.

    -jcr

  • Eduard van Haalen||

    Suggested alt-text:

    "The Great Holdero uses his psychic powers to sense a terrorist."

  • Jeffersonian||

    Code Pink would be going apeshit if Chimpy Katrinaburton was still Prezzydint.

  • ||

    The more I hear Eric Holder speak, the more I think John Ashcroft got a suntan, lost weight and weasled his way in as the head of Obama's Injustice Department.

  • John C. Randolph||

    I never thought I'd miss Ed Meese.

    -jcr

  • ||

    Hey Eric--Here is another defintion of "due process"--"the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." It comes from this really old piece of parchment called "The Constitution of the United States" You might want to check it some time since you are sworn to uphold it.

  • ||

    Damn the 900 character limit, but Eric, here is another one of those pesky legal definitions. "Mmurder" is the "unlawful killing of another human being." Denial of due process=unlawful, which makes your boss a murderer and you an accessory to murder. Sounds like a high crime to me.

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