Holder: U.S. can kill Amer­i­can ter­ror­ists abroad

Due process met, le­gal ra­tio­nale says

The Washington Times Daily - - Politics - BY SHAUN WATERMAN

U.S. mil­i­tary and in­tel­li­gence agen­cies can legally kill Amer­i­can cit­i­zens over­seas if they are al Qaeda lead­ers who pose an im­mi­nent threat to the United States and can­not be cap­tured, U.S. At­tor­ney Gen­eral Eric H. Holder Jr. said Mon­day.

His com­ments mark the first time that a Cab­i­net mem­ber has ad­dressed di­rectly the le­gal jus­ti­fi­ca­tion for last year’s U.S. drone strike on Amer­i­can­born rad­i­cal cleric An­war al-awlaki, who U.S. of­fi­cials said was a se­nior leader of al Qaeda in the Ara­bian Penin­sula (AQAP), the ter­ror­ist group’s Ye­men-based af­fil­i­ate.

The at­tack also killed Samir Khan, an­other Amer­i­can who worked as a pro­pa­gan­dist for AQAP but was not the tar­get of the strike.

“Although I can­not dis­cuss or con­firm any par­tic­u­lar pro­gram or op­er­a­tion, I be­lieve it is im­por­tant to ex­plain these le­gal prin­ci­ples pub­licly,” Mr. Holder said in a speech at North­west­ern Univer­sity’s law school.

Mr. Holder’s speech fol­lows a long in­ter­nal de­bate in the ad­min­is­tra­tion about how much to say in public re­gard­ing the le­gal rea­son­ing un­der­ly­ing the tar­geted killing pro­gram, which is car­ried out by the CIA and the mil­i­tary’s Joint Spe­cial Op­er­a­tions Com­mand.

The pro­gram in­cludes drone strikes and “cap­ture or kill” mis­sions by U.S. forces, such as the Navy SEALS’ raid on Osama bin Laden’s com­pound in Pak­istan in May.

Mr. Holder said the 5th Amend­ment’s right to due process does not guar­an­tee cit­i­zens the right to a court hear­ing be­fore the gov­ern­ment kills them.

“‘Due process’ and ‘ju­di­cial process’ are not one and the same, par­tic­u­larly when it comes to na­tional se­cu­rity,” Mr. Holder said. “The Con­sti­tu­tion guar­an­tees due process, not ju­di­cial process.”

He said the re­quire­ment for due process is met in tar­geted killings with a “thor­ough and care­ful re­view” by se­nior in­tel­li­gence, na­tional-se­cu­rity and mil­i­tary of­fi­cials.

When the na­tion is at war and ter­ror­ists can strike with­out warn­ing from havens in hos­tile or un­govern­able coun­tries, only the ex­ec­u­tive branch has the “real- time in­for­ma­tion” needed to make those life-and-death de­ci­sions, he said.

Mr. Holder did not men­tion the clas­si­fied le­gal opin­ion that de­tails the gov­ern­ment’s jus­ti­fi­ca­tion. Some law­mak­ers, among them Sen. Dianne Fe­in­stein, Cal­i­for­nia Demo­crat and chair­woman of the Se­nate Se­lect Com­mit­tee on In­tel­li­gence, have called on him to pub­lish it.

Mrs. Fe­in­stein’s of­fice had no im­me­di­ate com­ment on the speech, which did lit­tle to re­as­sure crit­ics of the tar­geted-killing pro­gram.

Mr. Holder “claimed [the] 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.

That au­thor­ity is “chill­ingly broad,” she said.

“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,” Ms. Shamsi said.


At­tor­ney Gen­eral Eric H. Holder Jr. said Mon­day that the decision to kill a U.S. cit­i­zen liv­ing abroad who poses a ter­ror­ist threat “is among the gravest that gov­ern­ment lead­ers can face,” but jus­ti­fied the ac­tion as le­gal and some­times nec­es­sary in the war on ter­ror­ism.

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