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.
Kevin Gosztola has more analysis at The Dissenter.