- The Washington Times - Wednesday, March 7, 2012

ANALYSIS/OPINION:

This week, Attorney General Eric H. Holder Jr. laid out the Obama administration’s rationale for assassinating Americans abroad. Cutting through the rhetoric, the argument still amounts to saying, “because we can.”

Speaking to an audience at Northwestern University law school Monday, Mr. Holder revealed some of the previously secret rationale for targeted killings of American citizens engaged in terrorism abroad. Mr. Holder said, correctly, that rights under the Constitution are not abstract and absolute, but their legal standing is conditioned by specific circumstances. He proposed a means of balancing the individual’s right to due process under the Fifth Amendment against the government’s responsibility “to protect the innocent people whose lives could be lost in [terrorist] attacks.” For a targeted killing to be legal under White House rules, it must fulfill three conditions: that “the individual poses an imminent threat of violent attack against the United States,” that “capture is not feasible,” and that “the operation would be conducted in a manner consistent with applicable law of war principles.”

The third leg of the test is useful but not relevant to the constitutional question. The United States is obligated under international treaty to conduct itself in accordance with the rules of armed conflict. Mr. Holder is essentially saying that while conducting assassinations, the administration will not additionally commit war crimes.

The feasibility-of-capture condition is purely utilitarian, vague and elastic. It is more a matter of government convenience than constitutional principle. It should not be used as a justification for state-sanctioned killing any more than a policeman could assert that because he deemed it infeasible to capture a fleeing unarmed suspect, he simply shot the suspect in the back.

The first leg is the most salient and stands on the recognized principle that the executive has the power to use pre-emptive lethal force in times of urgent need. However, the American targets of the Obama administration’s assassination program did not pose an imminent threat of violence. None was killed in the process of conducting attacks or engaging in any threatening behavior. Stretching the rationale for this type of executive action to the point where it can justify killing Anwar al-Awlaki while he was out for a drive in the country is a dangerous slippery slope.

Most troubling, and certainly fatal to the administration argument, is Mr. Holder’s assertion that the decision to kill Americans abroad rests solely with the executive branch and requires no judicial action or oversight. Mr. Holder asserted that it would be impractical to get judges involved in operations that require “real-time decisions,” which “depend on expertise and immediate access to information that only the executive branch may possess.” But this directly contradicts a requirement established in the first part of Mr. Holder’s balancing test for a “thorough and careful review” before someone is placed on the assassination list. Mr. Holder confuses the tactical requirements of the killing itself with the due process leading to the authorization for executive action. If there is time to build a solid case to kill someone, there’s time to see a judge. If there’s no time to see a judge, the case cannot be strong enough to warrant assassination.

Mr. Holder argues for a troubling expansion of executive power, an unchecked infringement on due-process rights based chiefly on expediency, with worrying implications for its domestic application. A more fruitful, less dangerous approach would be to make the case that people engaged in anti-U.S. terrorist activity abroad no longer consider themselves Americans. Through words and deeds, they have relinquished their citizenship. This would require no expansion of the government’s powers and would not discard the Constitution for Mr. Obama’s lethal convenience.

The Washington Times

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