In a recent speech given at Northwestern University Law School, Attorney General Eric Holder sought to provide legal justification for the controversial practice of “targeted killings” of US citizens suspected of terrorism. In a widely reported drone attack, the Obama administration executed Anwar al-Awlaki along with another US citizen last September in Yemen. “Targeted killings” have been criticized for violating an executive order banning assassinations, a federal law against murder, the protections of the Bill of Rights including the Fifth Amendment right to due process, and various principles of international laws of war.
While it is widely known that the Justice Department’s Office of Legal Counsel has authored a memo asserting this power, the Obama administration still refuses to make it public.
AG holder said killing of an American citizen who is associated with al Qaeda is permitted when the US government has determined that “the individual poses an imminent threat,” capture is not feasible, and the operation would be conducted “in a manner consistent with applicable law of war principles.”
The due process clause of the Fifth Amendment, however, requires that an individual facing the deprivation of life, liberty, or property be given notice and a hearing before an impartial judge where he or she can challenge the basis for that deprivation.
Holder argued that certain individuals facing death need not be provided with an opportunity to challenge that decision in court. He drew an odd distinction between “due process” and “judicial process” saying that they “are not one and the same, particularly when it comes to national security” and that “the Constitution guarantees due process, not judicial process.” Essentially, he argued that the decision to end the life of US citizen can rest entirely with the executive branch of our government with no judicial review whatsoever because the Constitution “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 US citizen.”
Holder’s justification for targeted killings raises many worrying questions. For instance, are targeted killings limited to foreign countries or can they be used domestically under certain circumstances? What procedures does our government follow before taking the decision to execute a US citizen? And how does the government define “operative of a foreign terrorist organization that is at war with the US”?
Writing for the NY Review of Books, Constitutional law scholar and Bill of Rights Defense Committee advisory board member David Cole noted that the risk of error in targeted killings is too great. He explained,
But [Holder] paid far too little attention to the risk of error or the burden of providing further procedural guarantees. The risk of error where the executive acts as prosecutor, judge, jury, and executioner, in secret, could hardly be greater. One need only look at the over 600 men once condemned as the “worst of the worst” but now released from Guantanamo to see that the executive can make mistakes. Holder provides no assurance that a demanding review process is undertaken, or of how it is constructed to minimize risk of error, or even what standard of proof is employed.