“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,” Mr. Holder said in a speech at Northwestern University’s law school. “In that case, our government has the clear authority to defend the United States with lethal force.”
“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,” Mr. Holder said. “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.”
Due process without courts? Like Guantanamo, right? Where the President, through his own executive power, determines what process is due to detainees at Gitmo? Right? Screw habeas!
I’d love to see the OLC memo explaining that one? Oh yeah, that’s right. We won’t see it.
Mr. Holder’s speech has been planned since last fall, when questions were first raised about the Obama administration’s legal justification for the targeted killing of Anwar al-Awlaki, a New Mexico-born radical Muslim cleric who died in an American drone strike last September. The administration has rejected bipartisan calls to release a secret memorandum by the Justice Department’s Office of Legal Counsel, which signed off on killing Mr. Awlaki. Mr. Holder’s speech was designed to offer the public some explanation of the government’s reasoning.
Still, the speech contained no footnotes or specific legal citations, and it fell far short of the level of detail contained in the Office of Legal Counsel memo — or in an account of its contents published in October by The New York Times based on descriptions by people who had read it.
You know, I would feel much, much better if the Attorney General just said–“Listen. These U.S. citizens want to harm American interests, and it’s just not feasible to ask a court for permission first, so we’ll kill them when we can. We are not bound by the Constitution in these extraordinary circumstances. We won’t try to bastardize our notions of fairness and due process by pigeonholing these assassinations into existing jurisprudence. This situation is different. Gotta do what we gotta do. Just say’n.” I would love if Holder said that. Then we would realize what is actually going on without the technobabble and cognitive dissonance, and we would not have to warp our understandings of what the rule of law is. This distortion of language–military kinetic action, not war–is almost Orwellian.
For what it’s worth, I heard Holder give a speech in front of the ACS National Conference last summer. His delivery was drab and stodgy. Not charismatic in the least. And his talk was even worse, where he justified very similar policies. It was barely 15 minutes.
Update: The ACLU is not happy:
“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.”