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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.

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

  • Observer

    Can anyone say “Enabling Act” ?

    But this also highlights something that has been mostly ignored by the media. Obama loves to boast of the number of drone strikes he has ordered as showing his is a tough commander-in-chief, but what is overlooked is that under George W. Bush the emphasis was on capturing enemies and obtaining intelligence from them.

    Obama avoids the messiness of waterboarding and other enhanced interrogation techniques by simply having and entire house — target, women, children, whoever — blown to smithereens. You get a dead terrorist, but you get no intelligence about any future terrorist operations.

    But I absolutely loved Eric Holder’s rather Orwellian statement: “… due process does not mean judicial process.” WTF?

    Oh, don’t forget. Obama, who has often spoken about the flaws in our Constitution, claims to have taught Constitutional law.

  • Anderson

    [N]o president has previously asserted the power to order the killing of an American citizen far from the battlefield.

    Not even Bush?

    The whole thing is bizarre. There’s no question about killing people, U.S. citizens or not, on an actual battlefield. But these are just assassinations, pure and simple.

  • John

    al-Awlaki was an enemy combatant. We kill enemy combatants. If a US citizen wants to join an enemy force as a planner and assume a leadership position, then he or she better be prepared to be targeted and killed.

  • society's pliers

    How exactly is the management of Animal Farm any different now? At least when it comes to issues like this.

  • Anderson

    If a US citizen wants to join an enemy force as a planner and assume a leadership position

    But isn’t that the $64,000 question? Did he do that? How do we know? Who says so?

    If the president says “Anderson’s an enemy combatant, take him out,” is that sufficient? Are there any checks and balances, beyond straight-up impeachment, on this power?

  • NMC

    Are there any checks and balances, beyond straight-up impeachment, on this power?
    << If the courts are cut out, I guess the answer is “no.”

  • Jim Craig

    John and Tom’s comments surface what is missing in Mr. Holder’s analysis: a declaration of war or of authority to use force. If an American citizen was actively collaborating with the Nazis from 1941-45, surely he or she could be targeted regardless of his or her geographic location (i.e., whether or not “away from the battlefield”).

    Because we have allowed the executive branch to conduct military operations without Congressional declarations of war, we have lost the constitutional check that is meant to be employed with respect to this decision.

    On the other hand, I doubt Congress would refuse to authorize the use of deadly force against al-Queda, and perhaps the existing authorizations already provide this authority.

  • John

    Question 1: “Did he do that [join an enemy force]?” Answer: Yes. Question 2: How do we know? Answer: By al-Awlaki’s own admissions that his writings and social network materials were aimed at recruiting English speaking jihadists, by his repeated calls for jihad against the US, and by intell linking him to the “Underwear Bomber” and to al-Qaeda in the Arabian Peninsula (the organization which took credit for the parcel bombs found on cargo aircraft bound for the US). Question 3: Who says so? Answer: al-Awlaki repeatedly declared jihad against the US and acknowledged that his materials, written in English, were calculated to recruit English-speaking jihadists as noted by Charles Allen, US Undersecretary of Homeland Security for Intelligence and Analysis, in October 2008 when he said al-Awlaki, “targets US Muslims with radical online lectures encouraging terrorist attacks from his new home in Yemen.” Nidal Hasan, the FT Hood shooter, has been linked with al-Awlaki. Undoubtedly, multi-source intell (SIGINT, HUMIT) was also used to reach the conclusion al-Awlaki was a planner and leader in al-Qaeda/al-Qaeda in the Arabian Peninsula. He was added to the high value target (HVT) list after intelligence data linked him to the “Underwear Bomber.” In the preemptive/preventive campaign we are prosecuting, we target HVTs wherever located and at times engage them with lethal force.

  • Hootie Dasher

    In 2008 in a couple of conversations among some attorneys I questioned Obama’s understanding of the U.S. Constitution. No one bit on the topic, perhaps not wanting to be called the dreaded R word. Then and now, I think he is an over-hyped product of affirmative action and not that bright. He either knows little constitutional law or disrespects it or both.

  • P.B. Pike

    Hootie Dasher,

    You don’t have the slightest freaking idea what you’re talking about. Absolutely zero. As Zbigniew Brzezinski told that windbag Joe Scarborough after he’d heard quite enough regurgitated slogans passing for criticism of the Israeli-Palestinian conflict, “Your knowledge of this subject is so superficial it’s embarrassing to listen to you.”

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