Vol. 76/No. 11      March 19, 2012

It’s legal for the U.S. president to issue an order targeting a U.S. citizen for the “use of lethal force,” Holder stated in his speech at the Northwestern University School of Law in Chicago. And since it’s “legal,” please stop calling it “assassination,” he added.

The top Justice Department official defended the Obama administration’s increasing use of drone attacks and special forces raids to target and kill individuals who Washington claims are leaders of “al Qaeda and associated forces.”

“We are at war with a stateless enemy, prone to shifting operations from country to country,” Holder stated, so Washington’s “use of force in foreign territory” is justified. This includes operations such as the execution of an unarmed Osama bin Laden by U.S. commandos in Pakistan in May 2011.

U.S. citizens can likewise be targeted, Holder said, “at least” in circumstances where they allegedly pose an “imminent threat” and “capture is not feasible,” as long as the operation is carried out “in a manner consistent with applicable law of war principles.” What constitutes an “imminent threat” is not limited to “when the precise time, place, and manner of an attack become clear,” he insisted. Essentially, the U.S. president has the authority to decide if and when these criteria are supposedly met.

The attorney general’s remarks were clearly aimed at justifying the killing of Anwar al-Awlaki, a U.S.-born cleric, in a drone strike in Yemen last September.

The Obama administration had publicly declared al-Awlaki to be a “specially designated global terrorist” with alleged ties to al-Qaeda, and placed him on a CIA and Joint Special Operations Command “kill list.” In December 2010 a federal judge threw out a lawsuit filed by al-Awlaki’s father demanding a halt to the government’s plans to kill him, saying that this was a matter for the executive branch, not the courts, to decide.

The Fifth Amendment to the U.S. Constitution, which states that no person shall be “deprived of life, liberty, or property, without due process of law” does not apply in this situation, Holder argued. “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security,” Holder asserted.

In plain English, this means that the president does not need permission from a court to order a U.S. citizen to be killed. “Due process” can be whatever the commander-in-chief decides it is. There is “robust oversight” of the president’s actions, Holder assured, in the form of periodic reports to “appropriate members of Congress about our counterterrorism activities.”

“If the president can kill a citizen, there are a host of other powers that fall short of killing that the president might claim,” commented Jonathan Turley, a law professor at George Washington University, in Foreign Policy magazine following Holder’s speech.

In the course of his speech, Holder praised the greater bipartisan integration of “domestic law enforcement and foreign intelligence” over the last decade. “It’s something that this Administration, and the previous one, can be proud of,” he said.

He also argued the government’s case for using both civilian courts and military tribunals to try those accused of terrorism. “Both incorporate fundamental due process and other protections … and we should not deprive ourselves of any tool in our fight against al-Qaeda,” Holder said. The military courts have no juries, and allow hearsay and other evidence that is supposed to be excluded in civilian trials.

The war budget Obama signed on Dec. 31 gives the Pentagon the power to detain all “terrorism” suspects, including U.S. citizens arrested on U.S. soil, and authorizes them to be held indefinitely without trial.
 
 
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