In the Obama era, “due process” can mean a secretly signed order targeting an American citizen for execution by Hellfire missile.
That’s not the overheated view of some embittered critic, but rather the carefully explained defence by the President’s top legal officer.
“The Constitution guarantees due process, not judicial process,” said Attorney-General Eric Holder in his long-awaited explanation of the legal justification for last September’s killing of Anwar al-Awlaki, an American-born citizen who was also, unquestionably, an al-Qaeda leader involved in plotting attacks against the United States.
Few Americans will shed any tears over the covert operation that hunted down and killed Mr. al-Awlaki. Months of intelligence gathering and sophisticated surveillance ended in an obliterating explosion when a Predator drone fired a Hellfire missile at his car on a remote road in Yemen, far from any combat zone.
Nor did Mr. Holder. It was an execution or a lawful killing, not an assassination or an unlawful killing, he claimed in a speech delivered earlier this month to hundreds of law students at Northwestern University in Chicago.
While Mr. Holder didn’t specifically refer to Mr. al-Awlaki, it was clear the carefully prepared, long-awaited address was President Barack Obama’s considered policy position on the highly charged subject of willfully killing American citizens.
“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,” Mr. Holder said.
Under certain conditions, according to his view, it is lawful, justified and not subject to review before – or after – by the courts.
“This administration is different in many ways from the last administration and has made many important strides,” said Jameel Jaffer, legal director the American Civil Liberties Union.
But “in the national-security context,” he added, “it has entrenched many of the most controversial practices and sometimes has taken those policies a step further; targeted killings are the most obvious.”
The view from the Oval Office that “due process” doesn’t require a warrant, indictment, arrest, trial or any sort of judgment by the courts may come as a surprise to most Americans.
The Constitution’s Fifth Amendment seems pretty clear. No citizen, it says, shall “be deprived of life, liberty, or property, without due process of law.”
Mr. Holder, in a fashion that reminds some critics of the tortuous interpretation used by the Bush administration to pass torture off as lawful “enhanced interrogation techniques,” contends Mr. al-Awlaki got due process, albeit not judicial process.
At stake is more than just a rights ruling. Mr. Obama, in a thinly veiled attack on his predecessor soon after his inauguration, said that Americans “uphold our most cherished values not only because doing so is right, but because it strengthens our country and it keeps us safe. Time and again, our values have been our best national-security asset.”
So the President’s credibility now rests on a novel and broad interpretation of the U.S. Constitution and a far-reaching extension of presidential powers.
Mr. Holder laid out three fundamental conditions before the President could lawfully order a targeted killing of an American citizen overseas: The citizen must pose an imminent threat; capture must be unfeasible; and the killing must be consistent with the laws of war. But – taking a page straight out of the Bush playbook – Mr. Holder said the Obama administration wouldn’t release the legal opinions underpinning those arguments.
And it is fighting rights groups and news organizations seeking to have those secret opinions disclosed.
“From what we know so far, the memo is highly reminiscent of the torture memos written during the Bush administration, in which irrelevant U.S. cases and statutes are cited in order to give the CIA a green light,” Mary Ellen O’Connell, an international law expert at the University of Notre Dame, told The Associated Press. “International law does not permit targeted killing far from battle zones.”
But Mr. Holder argues al-Qaeda is waging a worldwide terrorist campaign and the United States has the right to defend itself – even if it means targeted killings without warning – anywhere capture isn’t feasible.
He also said it was unreasonable, in fact impossible, to seek advance approval for such covert, secret and often fast-moving attacks. “Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen,” he said.
That rationale leaves many civil-rights advocates unconvinced. “Holder is constructing a straw-man argument here,” said Mr. Jaffer, of the ACLU. “We are not aware of anyone who has argued that judicial review before a targeted killing is always required, or that courts should exercise real-time oversight over lethal operations.”
The ACLU and other rights groups say judicial review – after the fact, if necessary – is required to test the legality of the targeted killing of American citizens overseas. They also reject the Obama administration’s vague claim that the entire world is a killing zone, if capture seems unfeasible.
Mr. Holder, though, argued that the President could order the killing of any American, anywhere, any time, once it was determined the three basic conditions were met. “There are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.”
In at least three cases in the past 18 months, one involving a 16-year-old, drone strikes have killed U.S. citizens overseas. It isn’t clear whether the other two were considered “collateral damage” in attacks on other targets but Mr. al-Awlaki seems to have been put on a kill list some time in 2010.
Mr. Jaffer also took issue with the government’s use of “imminent” threat to seemingly cover the target of fleeting opportunity. Unlike, for instance, a police officer who can lawfully shoot someone he believes poses an immediate violent threat, the same authority might not allow the killing of a fugitive who was fleetingly in view.
Given the secrecy that shrouds the targeted-killing campaign, the constitutional merits seem unlikely to be tested in court before the next execution. Whether they can be tested after a killing – similar to a wrongful-death case – remains to be seen.