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Attorney General Holder addresses Awlaki killing



Attorney General Eric Holder recently addressed Northwestern University's School of Law and used that opportunity to address the legality of targeted killings, one of President Obama's most recent additions to his counterterrorism toolbox. The case surrounding the controversy of the speech is the killing of US-born Anwar al Awlaki, a radical cleric closely associated with al Qaeda and implicated in terror plots and attacks against the United States, in a drone strike in September 2011. The airstrikes that targeted Awlaki's convoy in Yemen are nothing new in the war on terror, but this situation was different in that the target was a US citizen.

Other than citing a 2001 joint Congressional resolution dubbed "The Authorization for Use of Military Force," Holder failed to give any real legal basis for his reasoning, offering only political rhetoric to explain the Obama administration's decision to take out one of America's most wanted terrorists.

The highlights:

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.

Furthermore, it is entirely lawful - under both United States law and applicable law of war principles - to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto - the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway - and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

....

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it's clear that United States citizenship alone does not make such individuals immune from being targeted [emphasis added]. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens - even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment's Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.

....

Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

The evaluation of whether an individual presents an "imminent threat" incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice - and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military - wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end- stage of planning - when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel. 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. In that case, our government has the clear authority to defend the United States with lethal force.

Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets - such as combatants, civilians directly participating in hostilities, and military objectives - may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.



READER COMMENTS: "Attorney General Holder addresses Awlaki killing"

Posted by Alan Hawk at March 7, 2012 11:02 AM ET:

While I agree that killing Awlaki was the right and necessary thing to do, I am troubled the U.S. Government killing one of its citizens. We need a legal process for stripping an individual who takes up arms against the United States of his or her citizenship, give them a chance to present him or her self to a U.S. court. If they fail to do so, try them in abstentia and, if appropriate, remove their citizenship. They will then be considered like any other foreignn national who takes up arms against the U.S. and its citizens.

Posted by gitmo-joe at March 7, 2012 12:11 PM ET:

All of these theoretical arguments of constitutional law are very impressive, very entertaining. But common sense should not be illegal. I'm pleased that Holder is with us on this one.

Posted by Devin Leonard at March 7, 2012 2:51 PM ET:

Personally I have no problem with A US citizen engaged in imminent acts of terrorisim being targeted and killed in the way we did with Awlaki.

These people forfiet their US rights when they pick up arms against the US. they are traitors and should be trated as such. Now IF we can use a unit like the FBI's elite HRT to capture them, then that is fine. If we can't...wax em!

Posted by JimBoMo at March 7, 2012 8:26 PM ET:

@ Alan Hawk: Exactly right. A citizen commits treason by attacking or threatening to attach or planning to attach the State. The State has the responsibility to protect other citizens from the threat.

But because a State could declare any range of activity or thought "an imminent threat", then State's power to attack its' own citizens must be carefully checked.

Therefore, in order to offer full protection to all citizens, the State must be forced to enumerate and prove why a citizen is a threat - in other words, make a case to prove treason.

Therefore, your suggestion is not just sensible but essential to protect all citizens.

Posted by SomeGuy at March 8, 2012 3:22 PM ET:

"These people forfeit their US rights when they pick up arms against the US. they are traitors and should be treated as such.(corrected)" -Devin

That is the problem Devin, traitors get a trial/Court Marshall.

Immediate self defense is not the issue here, the issue is if you are going to launch an 8 month drone strike assassination operation to take out a bad citizen whom you've been investigating for years... Someone OUTSIDE the executive branch should review the evidence and concur.

Thousands of non-citizens make "I hate America" you-tube video's and we don't kill them, yet.
Not saying he didn't deserve what he got, but checks and balances are necessary.

Posted by My2Cents at March 8, 2012 4:07 PM ET:

The problem with a trial in absentia is that even if he is a no show, his lawyers can insist on getting copies of the evidence against him, including the chain of custody, and probably get the right to show it to him (and the past shows will do so anyhow, even if they don’t get permission), and your intelligence sources are compromised.

There has to be a way around this problem, but I don’t see a way that does not fundamentally change the way the courts operate.

Posted by Rosario at March 8, 2012 7:45 PM ET:

WB,

This may be a biased statement understatement, but E. Holder is not the most competent AG the US has ever had. Would have thought the civil war combatant status in the south are a better example of the legal basis for killing US citizens without trial. Question - what exactly is the legal basis of your "principals of war" by the US?

Posted by James at March 9, 2012 6:59 PM ET:

I must say that I adamantly and vehemently disagree with any assertion that the elimination of Awlaki was not wholly justified.

This is a war, not a police action. Awlaki was a war criminal in the most severe sense of the term.

The president acted in self defense and defense of our Country. If obligated to do anything, he was obligated to do what he did.

I don't call this a 'targeted assassination.' What, are you saying that Awlaki was some sort of a politician or government entity?

The elimination of Awlaki was an act of justifiable self-defense; plain, pure and simple.

Awlaki was a real and imminent threat. This should be obvious to anyone with a lick of common sense.

Awlaki was not even in custody and was a fugitive and on the loose so I don't see how the question of a trial should even have to apply in such a scenario.

What kind of a low-life, would plot to blow up a civilian jetliner on Christmas day?

Awlaki made numerous public statements declaring jihad (or war) on the United States, and advocating the mass slaughter of innocent American civilians.

Even if he ever could have been considered to be a US citizen, by making such public statements I assert he voluntarily relinquished any claim any one may have of him being an American citizen.

Finally, Awlaki was on foreign soil and hence far beyond at least the scope of our judicial jurisdiction and intervention.

Posted by SomeGuy at March 10, 2012 1:32 AM ET:

"Awlaki was a real and imminent threat. This should be obvious to anyone with a lick of common sense."- James

Gee, James, sorry I'm not actually privi to vetted confirmed intel about Awlaki...my clearance level only goes so far. Clearly, you are in the know!

All I know is what the MSM has reported about this. I'm not suggesting a trial for these types, I'm merely suggesting a judicial review pannel for executive kill orders involving citizens. At a minimum it gives the people the piece of mind of two branches of government signing off on the kill order for a US citizen.

You could strip his citizenship quite easily with the evidence they had...but that didn't happen.

I've been in combat, and any dude stupid enought to become an imminent threat is simple dealt with, US citizen or not, but Yemen, Indonesia or Canada are NOT designated combat zones. How hard would it be to get a judicial branch approval?

My concern is what is to stop these prior "rulings" from being used against other enemies of the Executive branch in the future?