In Targeted Killing Speech, Holder Mischaracterizes Debate Over Judicial Review

In remarks delivered at the Northwestern University School of Law today, Attorney General Eric Holder provided the Obama Administration’s most detailed public description yet of the legal authority under which it believes it can carry out targeted killings, including of U.S. citizens abroad. Unfortunately, the remarks still amounted to a broad defense of the government’s claimed expansive authority to conduct targeted killings far from a battlefield, without judicial review of its legal justifications or evidence, either before or after a killing. The remarks also mischaracterized the debate over the need for judicial review of targeted killing decisions

Echoing statements made by Defense Department general counsel Jeh Johnson last month, Holder claimed that “some have argued that the President is required to get permission from a federal court before taking action against a United States citizen” (our emphasis), and argued that courts should not get involved in the “real-time decisions” to deploy lethal force. But Holder is constructing a straw man argument here. 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.

Rather, in a lawsuit we filed with the Center for Constitutional Rights in 2010 on behalf of the father of Anwar al-Awlaki (who was placed on a government kill list in 2009 and died in a joint CIA/military drone strike in fall 2011), we asked the court to set standards describing when the government could constitutionally use lethal force against a U.S. citizen away from an active battlefield. We also asked the court to order the government to reveal the criteria it used to place al-Awlaki on so-called “kill lists.” And we made clear to the court that we were not asking it to intervene in real-time decision-making by the Executive Branch. The court dismissed our lawsuit on the grounds that it raised “political questions,” and held that the judiciary had no role to play in deciding the legal criteria pursuant to which the executive branch could take the life of one of its own citizens.

As Holder’s speech demonstrates, though, judicial oversight is critically important given the breathtaking authority the government has claimed. Holder acknowledged that all U.S. citizens, including those accused of being terrorists, have a right to due process under the Constitution, but he argued that the Executive Branch, alone, should determine whether the due process requirement is satisfied when the government claims law of war or self-defense authority to kill. In a system of constitutional checks and balances, that simply cannot be the case. Courts must have a role in determining whether the government’s authority to kill its own citizens is legal and whether a decision to kill complies with the Constitution. Otherwise, the government can wield the power to take life with impunity. We should not trust any president – whether this one or the next – to make such momentous decisions fully insulated from judicial review. As the Supreme Court has admonished, “a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.”

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