AG Holder's Speech Raises Concerns

Last October, discussing the question whether the U.S. government could legally kill an American citizen living abroad, if that person were deemed an "enemy combatant."

Last week, in an important speech delivered at Northwestern University School of Law, Attorney General Eric Holder answered the question in the affirmative.

Holder began by contending that the targeted killing of a combatant is not an "assassination," a term he said refers to an "unlawful killing." In the view of the
Justice Department, the use of lethal force against a leader of "al Qaeda or associated force who presents an imminent threat of violent attack would not be unlawful."

"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 attorney general said.

In the case of the targeted killing of U.S. citizens, Holder stated that the government follows a three-step analysis. One, the person must pose an "imminent threat of violent attack against the U.S." Two, capturing the person must be deemed not feasible. Three, the operation must follow "applicable law of war principles." So long as those questions are properly addressed, Holder contended, the targeted killing would be permitted under U.S. law.

According to Holder, several factors are considered when determining whether a
U.S. citizen-terrorist constitutes an "imminent threat." The government may consider, among other things, the "window of opportunity to act," the possible harm to civilians, and the "likelihood of heading off future disastrous attacks against the U.S." These factors do seem, on their face, to expand the definition of "imminent threat" fairly widely. For example, by considering whether the killing would head off future attacks, the government clearly is suggesting that even in the absence of an "imminent" or "immediate" threat, the government might proceed nonetheless if it determined that more immediate threats might be avoided in the future.

Reaction to Holder's speech was swift, and in some corners negative.

Writing in Slate Magazine, Emily Bazelon took issue with the Obama administration's failure to release any internal legal memos justifying Holder's reading of U.S. and international law. "When the federal government takes a bold and new step like this, testing the boundaries of the Constitution, it's crucial for Holder and his lawyers to explain how and why."

The American Civil Liberties Union also criticized the speech.

"Few things are as dangerous to American liberty as the proposition that the
government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power," the ACLU said.

The ACLU and New York Times reportedly have commenced legal actions seeking the production of the Justice Department memos that authorize the targeted killings of U.S. citizens.

If the lawsuit is successful, American citizens will have a chance to decide for
themselves whether the Justice Department’s legal position is on sound footing both under the Constitution and applicable federal and international law.