AG Holder: President can order ‘targeted killings’ of Americans abroad
Attorney General Eric Holder defended the drone strike that killed Anwar al-Awlaki in Yemen last fall, asserting that the President can order “targeted killings” of American citizens engaged in terrorist activities overseas.
“It is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad,” said Holder. “It’s clear that United States citizenship alone does not make such individuals immune from being targeted.”
Awlaki was killed by U.S. drones in Yemen on Sept. 30. President Barack Obama called Awlaki’s death a “major blow” to Al Qaeda in the Arabian Peninsula. The American-born cleric led Al Qaeda’s “media jihad” and his fiery anti-American rhetorics were cited by Fort Hood shooter Maj. Nidal Hasan and “underwear bomber” Umar Farouk Abdulmutallab to justify terrorist acts against the United States. However, Awlaki was never charged with any terrorism-related crimes. Thus, Awlaki’s death raised troubling questions about whether the government should be allowed to execute American citizens who have never been tried or charged with a crime.
Without directly referencing Awlaki’s killing, Holder explained why the administration was justified in using lethal force against Awlaki:
“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. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.
“Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel. 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. In that case, our government has the clear authority to defend the United States with lethal force.
“Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.
“These principles do not forbid the use of stealth or technologically advanced weapons. In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.
“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 conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.”
Holder’s statements were criticized by the American Civil Liberties Union. The ACLU called the speech 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.”
“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,” said Hina Shamsi, director of the ACLU’s National Security Project.
- WhatTheFolly.com: Transcript: Attorney General Eric Holder on the legal justifications for targeted killings of Americans abroad
- C-Span.org: Video of Attorney General Eric Holder’s speech at Northwestern University on March 5, 2012
- WhiteHouse.gov: Remarks by President Barack Obama on Sept. 30, 2011
- Defense.gov: Remarks by Secretary of Defense Leon Panetta on Sept. 30, 2011
- Defense.gov: DOD briefing with Secretary of Defense Robert Gates and Adm. Mike Mullen on Nov. 19, 2009
- NYTimes.com: American Who Waged ‘Media Jihad’ Is Said to Be Killed in Awlaki Strike
- BBC.co.uk: Islamist cleric Anwar al-Awlaki killed in Yemen
- ACLU.org: ACLU Comment on Eric Holder Speech on Targeted Killing Program
- ACLU.org: ACLU v. Department of Justice complaint filed Feb. 1, 2012 (PDF)