- The Washington Times - Monday, March 5, 2012

U.S. military and intelligence agencies can legally kill American citizens overseas if they are al Qaeda leaders who pose an imminent threat to the United States and cannot be captured, U.S. Attorney General Eric H. Holder Jr. said Monday.

His comments mark the first time that a Cabinet member has addressed directly the legal justification for last year’s U.S. drone strike on American-born radical cleric Anwar al-Awlaki, who U.S. officials said was a senior leader of al Qaeda in the Arabian Peninsula (AQAP), the terrorist group’s Yemen-based affiliate.

The attack also killed Samir Khan, another American who worked as a propagandist for AQAP but was not the target of the strike.

“Although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly,” Mr. Holder said in a speech at Northwestern University’s law school.

Mr. Holder’s speech follows a long internal debate in the administration about how much to say in public regarding the legal reasoning underlying the targeted killing program, which is carried out by the CIA and the military’s Joint Special Operations Command.

The program includes drone strikes and “capture or kill” missions by U.S. forces, such as the Navy SEALs’ raid on Osama bin Laden’s compound in Pakistan in May.

Mr. Holder said the 5th Amendment’s right to due process does not guarantee citizens the right to a court hearing before the government kills them.

” ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security,” Mr. Holder said. “The Constitution guarantees due process, not judicial process.”

He said the requirement for due process is met in targeted killings with a “thorough and careful review” by senior intelligence, national-security and military officials.

When the nation is at war and terrorists can strike without warning from safe havens in hostile or ungovernable countries, only the executive branch has the “real-time information” needed to make those life-and-death decisions, he said.

Mr. Holder did not mention the classified legal opinion that details the government’s justification. Some lawmakers, among them Sen. Dianne Feinstein, California Democrat and chairwoman of the Senate Select Committee on Intelligence, have called on him to publish it.

Mrs. Feinstein’s office had no immediate comment on the speech, which did little to reassure critics of the targeted-killing program.

Mr. Holder “claimed [the] authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project.

That authority is “chillingly broad,” she said.

“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,” Ms. Shamsi said.