U.S. Law May Allow Killings, Holder Says

The New York Times on March 5, 2012 released the following:


WASHINGTON — Attorney General Eric H. Holder Jr. asserted on Monday that it is lawful for the government to kill American citizens if officials deem them to be operational leaders of Al Qaeda who are planning attacks on the United States and if capturing them alive is not feasible.

“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.”

While Mr. Holder is not the first administration official to address the targeted killing of citizens — the Pentagon’s general counsel, Jeh Johnson, did so last month at Yale Law School, for example — it was notable for the nation’s top law enforcement official to declare that it is constitutional for the government to kill citizens without any judicial review under certain circumstances. Mr. Holder’s remarks about the targeted killing of United States citizens were a centerpiece of a speech describing legal principles behind the Obama administration’s counterterrorism policies.

“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.”

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.

The administration has declined to confirm that the memo exists, and late last year, The Times filed a lawsuit under the Freedom of Information Act asking a judge to order the Justice Department to make it public. In February, the American Civil Liberties Union filed a broader lawsuit, seeking both the memo and the evidence against Mr. Awlaki.

Last month, Justice Department court filings against Umar Farouk Abdulmutallab, the Nigerian man who attempted to blow up a Detroit-bound airliner on Dec. 25, 2009, provided a detailed account — based on his interrogations — of Mr. Awlaki’s alleged involvement.

Mr. Holder, by contrast, did not acknowledge the killing of Mr. Awlaki or provide new details about him, although he did mention him in passing as “a U.S. citizen and a leader” of Al Qaeda’s Yemen branch when discussing Mr. Abdulmutallab.

Although widely reported, American drone operations over Yemen are considered to be covert by the administration. Mr. Holder said that while he could not “discuss or confirm any particular program or operation,” he believed it was important to publicly explain national security legal principles.

Those began, he said, with the authorization to use military force against Al Qaeda and its allies, enacted by Congress shortly after the terrorist attacks of Sept. 11, 2001, an authority that he said extended beyond the traditional battlefields of Afghanistan because Al Qaeda members are moving — and launching attacks — from elsewhere.

He also said that some threats come from “a small number of United States citizens” who are plotting attacks from abroad, and that “United States citizenship alone does not make such individuals immune from being targeted.”

He focused on one situation in which someone could be killed without a trial: when a citizen who is believed to be an operational leader of Al Qaeda or its allies and who is plotting attacks; who is located in a country that either granted the United States permission to strike or that is unable or unwilling to suppress the threat on its own; and whose capture is not feasible.

Significantly, Mr. Holder did not say that such a situation is the only kind in which it would be lawful to kill a citizen. Rather, he said it would be lawful “at least” under those conditions. Later, he offered an example of another situation in which it would be lawful to kill a citizen even if all those requirements were not met: “operations that take place on traditional battlefields.””


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Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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