The U.S. can lawfully kill terrorism suspects abroad, including American citizens who pose an immediate threat and can’t feasibly be captured, Attorney General Eric Holder said.
Holder’s comments, in a speech being delivered today in Chicago, marked the Obama administration’s highest profile defense of killings that target terror suspects since an American drone strike in Yemen last September killed Anwar al- Awlaki, a U.S.-born al-Qaeda recruiter and propagandist.
Holder didn’t justify specific killings. Under U.S. law, the U.S. can kill specific senior leaders of al-Qaeda and associated groups, Holder said in prepared remarks released by the Justice Department. He also described circumstances that would justify the use of lethal force against a U.S. citizen who is a senior operational leader of al-Qaeda or associated forces and is “actively engaged in planning to kill Americans.”
“The unfortunate reality is that our nation will likely continue to face terrorist threats that, at times, originate with our own citizens,” Holder said in the speech, being delivered at Northwestern University law school. “When such individuals take up arms against this country and join al-Qaeda in plotting attacks designed to kill their fellow Americans, there may be only one realistic and appropriate response.”
Holder said a targeted killing of a U.S. citizen is lawful if the individual poses an “imminent threat of violent attack,” capture isn’t feasible and the operation is conducted “in a manner consistent with applicable law of war principles” such as the target having “definite military value.”
Determining whether capture is feasible “is a fact- specific and potentially time-sensitive question” that depends on whether there’s enough time to prevent a terrorist attack and whether it would require “undue risk” to civilians or U.S. personnel, Holder said.
“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,” Holder said. “In that case, our government has the clear authority to defend the United States with lethal force.”
The Obama administration has faced calls from the American Civil Liberties Union to make public the legal justification for killings that target terrorism suspects since the drone strike against al-Awlaki.
Al-Awlaki masterminded the attempted bombing of a Detroit- bound airplane in 2009, according to a sentencing memo filed last month by federal prosecutors in the case against the bomber, Umar Farouk Abdulmutallab.
U.S. counter-terrorism officials have said al-Awlaki, via the website of al-Qaeda in the Arabian Peninsula, also helped inspire a U.S. Army major to kill 13 people and wound 29 at Fort Hood, Texas in 2009.
The ACLU unsuccessfully sued the U.S. government in 2010, challenging the killing of American citizens without judicial oversight as a violation of their due process rights.
“They are essentially arguing that the president should be able to order the extra-judicial killing of any American who he deems to be an enemy of the state and there’s no judicial review before the fact and no judicial review after the fact,” said Jameel Jaffer, the ACLU’s deputy legal director in a telephone interview yesterday. “It’s difficult to understand how that claim could possibly be consistent with the Constitution.”
The president isn’t required to obtain permission from a federal judge in advance to ensure a citizen’s rights to due process are protected, Holder said.
The executive branch must also have the flexibility to prosecute terrorism-related cases in both civilian courts and military commissions, Holder said.
Holder’s speech is the second law school address by a top Obama administration defending the legality of targeted killings in recent weeks. Jeh Johnson, the Pentagon’s general counsel, said it was a “long-standing and long-legal practice,” in a Feb. 22 speech at Yale Law School in New Haven, Connecticut.
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