Updated 5:30 p.m.
Attorney General Eric Holder Jr. this afternoon in Chicago offered the Justice Department's most detailed defense yet for using lethal force to kill Americans abroad who pose an imminent threat to national security.
In a much-hyped speech at Northwestern University School of Law, the attorney general outlined the legal principles the Obama administration has used to justify what it considers the lawful killing of U.S. citizens abroad.
Holder, however, declined to discuss or confirm any specific program or operation. The Justice Department has not publicly released its assessment of the legality of the killing of New Mexico native Anwar al-Awlaki, who was killed in Yemen last year.
He called the use of the term “assassination” misplaced and incorrect, saying that the word describes unlawful killings, not those that are lawful.
“Any decision to use lethal force against a United States citizen—even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land—is among the gravest that government leaders can face,” Holder said, according to prepared remarks of his speech. “The American people can be—and deserve to be—assured that actions taken in their defense are consistent with their values and their laws.”
Holder said the use of lethal force against an American abroad is justified under the following circumstances: the person poses an imminent threat against the United States; the government cannot capture the person; the operation would be conducted under the law of war principles. Critics, including the American Civil Liberties Union, described the Obama administration's claimed authority as "chillingly broad."
The Constitution, Holder said in the speech, “does not require the President to delay action until some theoretical end-stage of planning—when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.”
Any American target of lethal force, the attorney general said, must have “definite military value,” among several laws of war principles. Holder described a lawful target as a person directly participating in hostilities and military objectives.
Holder said the Executive Branch does not need permission from a federal trial judge before taking lethal action against an American operating as a senior leader of al Qaeda.
"'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security,” Holder said. “The Constitution guarantees due process, not judicial process.”
Judge John Bates of U.S. District Court for the District of Columbia in December 2010 dismissed a suit the American Civil Liberties Union filed on behalf of the father of al-Awlaki.
The suit sought to block the targeted killing. Bates' decision is here. The judge called the case unique and extraordinary, saying that it presented fundamental separation of powers questions that involve the role of the courts.
"The unfortunate reality is that our nation will likely continue to face terrorist threats that–at times–originate with our own citizens," Holder said in his speech this afternoon. "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."
Members of Congress, Holder said, are kept informed about counterterrorism activities as part of a "robust oversight" mechanism.
Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, in a statement this afternoon said Holder presented a "chillingly broad" authority to conduct targeted killings of civilians suspected of terror activity abroad.
“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. "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.”
Holder, in his speech, also defended the prosecution of terror suspects in federal trial courts, saying, “We are not the first administration to rely on federal courts to prosecute terrorists, nor will we be the last.”
The attorney general described as “baffling” the call among some critics to ban the use of civilian courts in terror prosecutions.
Holder identified several high profile terror-related cases—including John Walker Lindh, Richard Reid and Zacarias Moussaoui—that were prosecuted in civilian court under the George W. Bush administration.
“There are not two sides to this story,” Holder said. “Those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion—they are simply wrong.”
Civilian courts, Holder said, give the Justice Department greater flexibility in deciding on charges. He said military commissions can only prosecute specified offenses, including violations of the laws of war.