In a speech on national security at Northwestern Law, Attorney General Eric Holder explained the legal defense of targeted assassinations, including American citizens suspected of terrorism. The essence of Holder’s argument is the Executive branch of government possesses the power to take out people deemed an imminent threat to the national security of the United States.
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.
The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.
Holder also said that the Constitution guarantees “due” process but not “judicial” process. This means no judicial process is required if a threat is ruled credible and imminent. Apparently the analysis of the threat serves as the due process required by the Constitution, at least according to Holder and the Obama administration.
Does this alarm anyone? It definitely alarms the ACLU.
“While the speech is a gesture towards additional transparency, it is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project. “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.”
Based on Holder’s justification for targeted killing, an American plotting against the United States might find greater protection in Kansas than he would in Kabul. There won’t be any military missions or drone attacks on American soil, at least not until they concoct a legal defense.
What I want to know is who is making the decisions on these targeted killings? Ultimately it is the President who has to sign off, but his approval is based on the analysis and recommendation of others. Do we think these people have the power to decide which American citizens die without seeing a courtroom? You can’t say it’s justified, even if they are actively engaged in plotting terrorist attacks, because they haven’t been convicted yet. We don’t punish someone until they are convicted. Everyone is entitled to presume guilt, but the law presumes innocence, or at least it used to. This is the problem with declaring a war on a tactic instead of a country. It allows judicial process to take a backseat to war-related threats determined by a small group of government and military officials. 9/11 didn’t have to “change everything” if we didn’t allow it to.