Attorney General Eric Holder gave a speech yesterday at Northwestern Law School on the administration’s policy regarding the targeted killing (not assassination) of US citizens abroad. Full remarks can be found here. Here are a few interesting excerpts.
The difference between targeted killings and assassination:
Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.
The power of the executive:
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 boundless reach of the powers described:
Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.
This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.
I guess the bottom line is that the US can act with the consent of the nation in question, unless it does not consent, in which case it can act nonetheless.
Anyone who found the killing of Anwar al-Awlaki a source of concern should find Holder’s remarks interesting. It is largely devoted to a discussion of guiding principles. As Holder notes:
Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face. The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws. So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.
PILEUS 
I don’t know about you, but I am mightily reassured to know that my Constitutional guarantee of the due process of law gets the full weight of “grave concern” by those who think it would be a good thing to kill me. And that the Constitution fully protects me, except that the law governing such decisions turns out to be the law of other nations, except of course (as you observe) when they attempt to limit the decisions of these grave decision-makers.
Kenneth Anderson, over at Volockh likes to defend the extra-judicial execution, mainly on utilitarian grounds.
Mr Anderson’s analysis is way too utilitarian for me. It’s just not good enough to say we need a transparent administrative, rather than judicial process, to execute people off the battlefield. The problem with such utilitarian analyses is that our erstwhile “friends” and so called “enemies” can pick up the same analysis, dust it off and use it against us. When the Chinese government or the Indonesian government or the Paki government or the Iranian government or Israeli government start killing Americans, off the battlefield, anywhere in the world and justify it on the grounds of a transparent administrative process analogous to our own, what are we gonna do while everyone laughs at us?
The other big problem with the utilitarians, is that on this issue, the fail to assess how real is the threat to the body politic? One must take extra care to compare the exigent threat to other exigent but greater threats and weigh whether the response to the firsy threat is commensurate with the response to those other greater threats.
This is where the whole utilitarian analysis of extra-judicial murder in response to the threat of terrorism unravels, because the threat to the body politic from terrorist events is statistically smaller that the threat of lightning strikes to the body politic . Would we consider murder to stop people from dying in lightning strikes, even is such an absurdity were possible? Terrorism is just not a problem now or ever so it doesn’t justify extra-judicial murder.
Assuming the utilitarian analysis pans out in favor of murder. There are well established constitutional means to carry out said murder. One could start with a declaration of war or to a lesser extent, letters of marque and reprisal provide a non-judicial but fully transparent political and administrative means to mark a person or group of person for death.
Where have all the anti-war, anti-torture protesters gone? That’s a rhetorical questioned designed to communicate that these folks, once elected, are all the same, and their supporters are nothing but sycophants and opportunists.
Whether you are Holder arguing for the use of lethal force against US citizens, or John Yoo arguing for a new definition of torture, these are just recent examples of how those elected to positions of power are often overwhelmed by a perceived obligation to protect that results in their embrace of the end justifying the means.
Are we safer because of the actions of George W Bush, Barrack Obama, John Yoo, and Eric Holder? I think not.
Holder, “The Constitution guarantees due process, not judicial process.”
I think the Constitution guarantees due process… of law. By implication and in practice, due process… of law is a… judicial process. Additionally, I suppose Holder forgets that the president is the executor not the creator or arbiter of law. So yeah, he does have to get permission from Congress or from a judge to kill someone.
Military law applies to unlawful combatants, not criminal law. Killing enemy combatants is perfectly legal by military law, no need for a judicial hearing before each enemy combatant gets whacked.
I would not quibble with you over the treatment of unlawful combatants. There is nothing novel about the execution of unlawful combatants upon apprehension or confrontation in the battlespace.
But the term combatant, according to most conventions, implies implies combat as well as a finite space where combat is conducted during a finite time period. Holder wants to remove each of the finite aspects and wishes to execute all combatants, lawful or not, as well as non-combatants anywhere in the world, anytime. The three Americans, thus far executed were not, strictly speaking, combatants of any sort, nor were they in a battlespace. They were physically present upon the territory of one of our allies.
Execution of all enemy combatants is clearly an exaggeration. I seriously doubt Holder would execute anyone caught in enemy uniform, subject to the enemy’s chain of command, who only targeted our combatants. The dispute is about what to do with those who are not in uniform, not subject to any enemy chain of command, and trying to kill our civilians.
As for the 3 “Americans” killed thus far, if our allies were unable or unwilling to put a stop to their activities, then we’re perfectly within our rights to do it ourselves. The fact that they’re not in US territory, not subject to US jurisdiction, is what makes it a military matter, not a criminal one. It really doesn’t matter whether they’re in allied, neutral, or hostile territory. Even if they’d been within the US, their connection to those outside US jurisdiction might make them subject to military rather than criminal prosecution.
I don’t think you have been following this. Holder is attempting to broaden the category of legitimate military targets to include anyone, including US Citizens, who are not actively engaged in hostilities anywhere in the world. Membership in an affiliate makes you a target according to Holder’s reasoning.
As a practical matter it’s bad policy. As I stated earlier, our erstwhile “friends” and so called “enemies” can pick up the same analysis, dust it off and use it against us. When the Chinese government or the Indonesian government or the Paki government or the Iranian government or Israeli government start killing Americans or anyone else, off the battlefield; our remonstrations against it will fall on deaf ears.
By what definition of “actively engaged”? Awlaki gave the Ft. Hood shooter his marching orders.
Our enemies already try to kill Americans wherever they can. Nation-states are prevented from doing so by deterrence, not any reciprocal agreement between us not to kill people in each others territory. BTW, for your analogy to hold, China would have to be killing Chinese citizens in America for belonging to anti-Chinese terrorist groups.