Eric Holder: U.S. Government Can Kill U.S. Citizens if the Threat is Serious and Capture "isn't feasible"


As promised, today in a speech at Northwestern University Law School in Chicago. Attorney General Eric Holder attempted to explain why targeted killings of American citizens is legal. And judging by the miserable standards of this pro-transparency administration whose president accepts transparency awards in secret, the speech was something like progress.

But really, it was mostly Holder saying no, we're allowed to do this if the threat is really, really serious and we can't capture the individuals. And don't worry, the government is carefully reviewing this. 

Holder spoke mostly broadly, mentioning the assassination of American citizen and radical cleric Anwar Al-Awlaki in passing. The Los Angeles Times noted that according to Holder, Awlaki was one of those people who "poses an imminent threat against the U.S, his capture is not feasible, and his slaying 'would be conducted in a manner consistent with applicable law of war principles.'" Which is what happened in September.

As to the general legality of these (please don't call them) assassinations, here are some of Holder's more interesting comments:

Let me be clear: an operation using lethal force in a foreign country, targeted against 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, would be lawful at least in the following circumstances: 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….

[T]he Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.  Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed….

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. "Due process" and "judicial process" are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process….

The Constitution's guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.  

That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight.   Which is why, in keeping with the law and our constitutional system of checks and balances, 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.

Read the rest of the remarks here. Or, as the official Department of Justice twitter put it, "Read the Attorney General's full speech on ensuring security, justice and liberty[.]"

There's much to be uncomfortable over, especially vague reassurances like "robust oversight" and sketchy, stretchy condemnations like "associated forces." And really, did Holder say anything new? The executive branch believes it has this power, the 2001 Authorization for Use of Military Force may have granted it with its alarmingly broad scope for hunting down terrorists. We knew this already.

And it gets worse. According to the Los Angeles Times:

Holder did not mention the September slayings of Awlaki or Khan, or the reported slaying of Awlaki's 16-year-old son, Abdulrahman, in a drone attack two weeks later. Nor did he discuss the Department of Justice Office of Legal Policy document giving the administration legal justification for the use of force. Indeed, he did not even acknowledge that such a document exists, although several organizations have filed suit to make it public.

Holder did not take questions from reporters after his remarks, and while he originally was going to answer questions from the law school audience, on Monday morning he abruptly canceled that plan.

The most frustrating part about this might just be how generous and transparent Obama's people think they are being by explaining this. But why bother with the speech at all if it's always going to come down to trust us, this is legal?

Reason on drones and on Eric Holder