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Killing U.S. Terrorism Suspects Overseas Defended by Holder

March 5 (Bloomberg) -- 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 today in Chicago, marked the Obama administration’s highest profile defense of targeting 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 senior leaders of al-Qaeda and associated groups, Holder said. 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 told an audience of about 700 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 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.”

‘Time-Sensitive Question’

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.

Airplane Plot

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.

The speech was a defense of the U.S. government’s “chillingly broad” claim of authority to kill U.S. citizens, said Hina Shamsi, director of the ACLU’s national security project, in a statement.

“Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact,” Shamsi said.

Obtaining Permission

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.

To contact the reporters on this story: Seth Stern in Washington at sstern14@bloomberg.net; Whitney McFerron in Chicago at wmcferron1@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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