Admin's Defense of Extrajudicial Killings Infuriates ACLU, Civil Libertarians
Yesterday Eric Holder gave a speech essentially justifying the extrajudicial killings of American citizens based on suspected terror activity--with a "due process" as determined by the executive branch.
He laid out the following conditions for "lethal force:"
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
The primary point that riled Holder's critics was his assertion that due process did not necessarily mean due judicial process--that the process undergone by the President's branch of government would, in the above cases, be enough, without going through the courts.
The ACLU, which had filed suit on this issue over the case of Anwar al-Awlaki, who was killed by a U.S. drone strike along with a son after being placed on a government "kill list," makes it clear why Holder's explanation doesn't hold water and reaffirming the role of checks and balances.
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.”
To many of us, the most frightening issue here is that of precedent. If Bush's flouting of the law broke precedent, Obama's following in his path cements it. As Hina Shamsi,of the American Civil Liberties Union’s National Security Project said, most compellingly, "Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”
This is the rub. Imagine a president Gingrich or Santorum, Romney, Palin or even Chris Christie, surrounded by the most hawkish of hawks and ultra-conservative religious zealots in the White House, with the ability to order a hit on anyone he deemed "enemy of the state." Then shudder for our future.