Picking and Choosing

On Monday, the Obama administration explained when it's allowed to kill you...

If the standards for when the government can send a deadly flying robot to vaporize you sound a bit subjective, that's because they are. Holder made clear that decisions about which citizens the government can kill are the exclusive province of the executive branch, because only the executive branch possess the "expertise and immediate access to information" to make these life-and-death judgments.

Holder argues that "robust oversight" is provided by Congress, but that "oversight" actually amounts to members of the relevant congressional committees being briefed. Press reports suggest this can simply amount to a curt fax to intelligence committees notifying them after the fact. It also seems like it would be difficult for Congress to provide "robust oversight" when intelligence committee members like Senator Ron Wyden (D-Ore.) are still demanding to see the actual legal memo justifying the policy.

Both supporters and opponents of the administration's targeted killing policy offered praise for the decision to give the speech. They diverged, however, when it came to the legal substance. "It's essential that if we’re going to be doing these things, the top officials of our national security and legal officials explain why it's legal under international and constitutional law," said Benjamin Wittes, a legal scholar with the Brookings Institution, who said he thought the speech fufilled that obligation. "I think [the administration] is right as a matter of law."

In a statement, Hina Shamsi, Director of the ACLU's national security project, called the authority described in the speech is "chilling." She urged the administration to release the Justice Department legal memo justifying the targeted killing program—a document that the ACLU and the New York Times are currently suing the US government to acquire. "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."

“The Constitution’s guarantee of due process is ironclad, and it is essential — but, as a recent court decision makes clear,” Holder argued, “it does not require judicial approval before the president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen.”

Holder left several aspects of his argument unexplained. He did not define the terms “senior operational leader” of al-Qaida, nor what it means to be an “affiliate” of the amorphous group. The attorney general only referred to the drones through the euphemism “stealth or technologically advanced weapons.” Holder did not explain why U.S. forces could not have captured Awlaki instead of killing him, nor what its criteria are for determining on future missions that suspected U.S. citizen terrorists must be killed, rather than captured. Holder did not explain why Awlaki’s 16-year-old son, whom a missile strike killed two weeks after his father’s death, was a lawful target. Holder did not explain how a missile strike represents due process, or what the standards for due process the government must meet when killing a U.S. citizen abroad. Holder did not explain why the government can only target U.S. citizens suspected of terrorism for death overseas and not domestically.

The decision to kill an American, Holder said, is “among the gravest that government leaders can face.” Targeted killing is not assassination, he argued, because “assassinations are unlawful killings.” Among the few external limitations on the government’s war power that Holder mentioned were the approval of a local government where the strikes occur — which must have pleased reluctant, unsteady U.S. allies in Pakistan and Yemen — and the after-the-fact disclosure of the strikes to Congress.