Attorney General Eric Holder helpfully explained when the government can kill you without a trial, in a speech last night at Northwestern University. He didn’t take questions, because he was so crystal clear about it.
Attorney General Eric H. Holder Jr. asserted on Monday that it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible.
“Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack,” Mr. Holder said in a speech at Northwestern University’s law school. “In that case, our government has the clear authority to defend the United States with lethal force.” [...]
“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,” Mr. Holder said. “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.”
Holder gave no legal standard for his remarks, but it appeared that he thought consultation with Congress satisfies the due process requirements of the Constitution. First of all, Congress has not been consulted to the degree that they even have the legal framework for the specific case that touched off this controversy, the killing of Anwar al-Awlaki. Ron Wyden has asked for that legal framework for at least nine months.
But it’s impossible to accept Holder’s standard, as Marcy writes in a different post, because the court case to which he alludes demands judicial review. Holder refers to the Hamdi case when he says, “In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.” But the Hamdi ruling specifically refutes that:
In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.
Never mind that Holder couldn’t make the legal case against Awlaki, the member of Al Qaeda in the Arabian Peninsula (because he put out YouTube videos, the US called him a leader, but that has not been proven). And needless to say, he didn’t even approach how to apply this to Awlaki’s 16 year-old son. All Holder did was invent a hypothetical standard that sounded mostly like Awlaki (a citizen believed to be an operational leader of Al Qaeda or its allies, living in a country that granted the United States permission to strike, where capture is not feasible) and then added that “operations that take place on traditional battlefields” would also meet the standard of targeted killing. I don’t think anyone took issue with that point, but of course, the threat here is a vision of the entire world as a battlefield.
In the FISA case, the Bush Administration decided that special courts – which rarely if ever challenged warrants for surveillance – were too cumbersome and unable to check the President’s inherent authority. Here we have the same thing, applied not to spying on people but killing American citizens. The case may be specialized (although Holder did not lay out specific terms or a legal framework, only test cases), but once you break that seal, future Presidents can take that any step forward they choose.
More from Adam Serwer. Let me quote him quoting Hina Shamsi of the ACLU’s national security project:
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.
UPDATE: As an emailer notes, the Fifth Amendment to the Constitution does guarantee that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” You can perhaps say that “due process of law” does not equal judicial process, but it’s a lot harder to make that sale.




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Shameful.
How on Earth do you vote for Holder’s boss? I can’t.
This is preserving protecting and defending the Constitution of the UNited States?
He ought to be impeached, just like Bush & Cheney should have been impeached.
Somebody should ask Boehner why HE feels safe from targetting, given that he has done everything Al-A was publically accused of.
Boxturtle (And somebody should ask Obama why he’s not targetting Boehner)
It’ll be fixed in the second term.
Who says he’s not ?
Maybe we’re going to trade secret agents with a very friendly country to do each others dirty work and all the while making it look like the hits came from Iran. You know the Mexican connection.
Holder was outright lying,in the first part of the speech, when he said” we’re at war “without a declaration of war to back up his words.
imaginary war imaginary enemy imaginary WMDs ………
We have lost our moral compass. It was broken on 9/11 and we threw it away.
Fixed it for ya!
Boxturtle (the spineless worm didn’t even bother to deflect some questions afterward)
The only thing that will save this country from its current moral bankruptcy is financial bankruptcy. The United States is currently the most dangerous political organization in the world, and the rest of the world has taken notice.
but “It’s not illegal if the pResident does it.” — r.m. nixon
holder is just adding: “or his minions” to the precedent. s/ ;o(
We have laws to protect ourselves now if al Qaeda wants to go after American politicians and they are caught well the reverse concept also applies we can’t put them on trial for that can we? at least not without being called double standard frauds.
‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.
There is no such thing as due process in cases where the president claims plenary and unreviewable authority to act as judge, jury, and executioner with respect to anyone he believes is a terrorist: a term broad enough to take in anyone the government perceives to be a threat–or even a nuisance.
OT: MyFDL is coming up as being an attack page on my security software. It is reporting a third party malware attempt.
Anyone else getting the page blocked for security? Here is the report coming up:
Agreed First we won the war right we are withdrawing troops. Second I am not sure that drones constitute having a war or that a war of assassination of the leaders only constitute a war. Third we violate the territory of other nations by killing people with drones.
Every time we kill a person from another country to get an al Qaeda leader we are pissing off the locals and getting al Qaeda more recruits.
This policy is why there still is fighting in Iraq and Afghanistan even after 10 years. After ten years this policy does not work.
Ossama always said he wanted to drag America into a Viet Nam type war to make us broke Bush created the housing bubble to boost our economy and hide that fact. When the housing bubble burst and the banks needed a bailout Ossama achieved his goal.
When we cut SS and Medicare to pay for the wars Ossama achieved more damage to America than Viet Nam did to America.
Even though Viet Nam had more deaths we never were forced to tell the solders coming home their SS and Medicare would be cut.
Holder and his boss claim a legal justification for killing that does not exist in our legal system. “Trials? We don’t need no stinking trials!” Trials only impede the efficient running of the national security state. So, how do we know someone is a terrorist? Trust the executive branch – it knows and never makes mistakes. Yeah, right.
For the past 10 years I have feared our government more than some supposed terrorist. Who is going to protect us from our “protectors?”
But…but…Holder’s a DEMOCRAT! Ergo, he must be a good guy and even if he isn’t, the Republicans are worse so you have to vote for his boss so he can continue to offer his lame-ass rationalizations for why we can be permanently imprisoned or blown away without due process of law! It’s the American way, doncha see?
I’ll have what you’re having.
It began occurring yesterday afternoon and seems to be doing so this morning. Mods said they were working on it. What does someone do when google’s malware reporting tool seems to be malfunctioning?
Great point the important words are Due! and Belief. the decision to end an others person’s life cannot be based on just a belief.
There was a bad image in a MyFDL diary yesterday. It was taken down and the tech crew is working on getting MyFDL restored to good graces at Google. (It’s google that has red-listed MyFDL.)
There’s no malware problem – the site is safe. The warnings should go away by later this afternoon.
In other words, “9/11 changed everything.”
I wonder what date a future Edward Gibbon will settle on as the date the U.S. ceased to be a republic. September 14, 2001, the date George W. Bush signed the Reichstag Fire Decree–I mean, the Authorization for the Use of Military Force–sounds about right.
It may just be a humorous coincidence, but I often get a “this website is dangerous” message from my security system when I go to Occupy-related websites.
This won’t work in a war crimes trial.
But when, if ever, will there be war crimes trials? You see what they did to Garzon.
We are a rogue nation on a course to suicide.
As someone just said above, the rest of the world is noticing.
So big nation states come and go. We are on the go.The technocrats and mad scientists are now learning Chinese.
They’ve certainly become brazen about their illegality, haven’t they? We won’t see a sea change until some future lawmaker becomes a target of the very process we’re establishing now. It’s a shame that former and current government officials have not been brought into the dock to face criminal charges.
Tell that to the Iraq nation.
No slam on you just saying 100,000 to 1,000,000 dead on a belief, even if they did belive it.
I am an admirer of Judge Garzon. When he issued his brief arguing for “universal jurisdiction” in 2009, many international legal scholars said he was on firm legal ground. Garzon publicly stated that what prompted him to do so was Philippe Sands’ book Torture Team, which was published in 2008. Sands was (is?) a British law professor. Correct me if I’m wrong, but didn’t the Madrid memos that were part of Wikileaks State Dep’t memos leak suggest that the US actively interfered in the Spanish judicial system in bringing about Garzon’s fall from grace?
Yes, indeedy. But, you see, Garzon was just a “publicity-loving” judge who had an “anti-American streak.” LINK.
As has been said:
In many, many, ways, we got Bush’s third term.
Love it!!!!
I think that someone astute said something to the effect that we got w’s third term on steroids. Anyone who wins the nobel peace prize in the future will probably feel unclean.
holder was just babbling. Whatever he said didn’t have to make sense; it just had to have something in it that the 0bots could use as a talking point. In the future, the word ‘hypocracy’ in the dictionary will show the picture of either 0 or holder, it doesn’t matter.
For the past 10 years I have been arguing THAT point with one of my buddies who “used to be” a “conspiracy nut”.
..
..
NOtice I said “used to be“?
Obama, Holder, and Geithner……….Bush, Cheney, and Rumsfeld.
Oh man………as my grandpa used to say, “With people like that, things don’t bode well for us.”
The criminal element will do and say anything to justify their crimes-
If this government isn’t overthrown and replaced by one which follows the actual, physical constitution, then we’ve already lost and all that’s left is calling our political and corporate nobility “My lord”.
Alberto Gonzoles Holder?
If we ever get an attorney general who considers it his job to enforce the law rather than just enable whatever criminality the President wants, it will be a great day.
Don’t hold your breath.
It’s only a War if it’s announced…therefore a War is whatever the Announcer-in-Chief…like, uh, er…Declares!
The Enabling Act…T.E.A. …probably just a co-incidence, eh?
The Nuremburg Defense 2.0…”I was only issuing orders”
Yay Obama!
http://www.youtube.com/watch?v=q2YsJVF-920&feature=relmfu
Stefan humorously(back when Barry was elected) prognosticates
about “change”.
Got the same warning when I accessed FDL today. What browser are you using? I’m using Firefox. Read the warning and decided to hit ignore. Upon accessing site, “log In”, etc. was at bottom of page rather than toolbar at top of site. Not savy enough to understand what’s involved. You?
Holder’s claim to fame, as I’ve stated here before, is his legal defense of United Fruit’s employment of paramilitary groups to murder unionists in Latin America. His contempt for the Rule of Law is legendary.
FWIW, I’m on Safari. No probe today.
If you were to read actual histories of the USA that were written by the victims of US corporate power, rather than the US govt. approved versions, you’d realize that the “moral compass” to which you refer is another illusion. Just ask the people of Latin America.
Thanks for the response. I posted before reading the comments between klynn and my first one. Just a glitch, I guess.
On the other hand, I suppose Holder’s reasoning will still be valid if, by chance, this kind of stuff happened to corrupt bankers.