I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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David Cole on Attorney General Holder’s justification for drone killings

David Cole has a good analysis of Holder’s speech on drone killings at New York Review of Books.  It begins:

The President of the United States can order the killing of US citizens, far from any battlefield, without charges, a trial, or any form of advance judicial approval. That’s what Attorney General Eric Holder told a group of students at Northwestern Law School yesterday, in a much anticipated speech. The Constitution requires the government to obtain a judicial warrant based on probable cause before it can search your backpack or attach a GPS tracking device to your car, but not, according to Holder, before it kills you.

It highlights the novelty here and then breaks down Holder’s reasoning:

[N]o president has previously asserted the power to order the killing of an American citizen far from the battlefield. If you are inclined to trust Obama with such power, what about the next administration? Or the leaders of Saudi Arabia, Russia, or China? In international law, what the United States does is often a precedent (or pretext) for others, and we will not have a monopoly on drone killing for long. …

Holder asserted that the president can order a targeted killing when: (1) we are at war; (2) the target lives abroad and is an operational leader of al-Qaeda or an “associated force”; (3) there is no feasible option for capture; (4) the individual poses an “imminent” threat of attack; and (5) the order is carried out consistent with law-of-war principles governing the use of force. Killing even a US citizen in those circumstances is consistent with “due process of law”, Holder asserts, even if no court reviews the executive’s decision before or after.

But each of the factors Holder lays out raises as many questions as it answers.

The piece closes by noting the opposition to judicial process.  How can we contenance an executive acting as prosecutor, judge, and executioner?

Moreover, he opposes any judicial process, even where there is time to provide it. In a case like al-Awlaki’s, where a person has been on a “kill” list for nearly two years, surely the minimal burden of making one’s case to an independent judge in camera would be worth the time and effort required. Notice and an opportunity to be heard may not be realistic, but Holder did not explain why it would impossible for the executive to make its case to an independent judge, much as it does for “foreign intelligence” searches and wiretaps under the Foreign Intelligence Surveillance Act. We have long recognized that those charged with law enforcement or security are at risk of overestimating their own certainty, and have therefore required that the government obtain a warrant from an independent judge before conducting a search, unless there is not time to do so. If we require such process even for the search of a backpack, shouldn’t we demand at least as much before the President orders the non-battlefield killing of a human being?

Will there ever be a way to undo the damage to civil liberties and the rule of law that has occurred over the last 11 years?  In any event, the whole thing is worth reading.

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