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2012-03-06

Attorney General Eric Holder Defends Legality of Targeted Killings of U.S. Citizens Overseas

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Using armed drones, President Obama has overseen the targeted killing of at least three U.S. civilians overseas — more than President Bush did in office. Are the killings legal? Hina Shamsi, director of the ACLU’s National Security Project, says Attorney General Eric Holder’s defense on Monday of the Obama administration’s policy authorizing the assassination of U.S. citizens abroad “left open more questions than it answered.” She says Holder’s speech amounted to a broad defense of the administration’s claimed expansive authority to kill its own citizens, far from any battlefield and without judicial review or oversight of legal standards. "While Holder acknowledges that the Constitution requires ‘due process’ before the government takes the life of one of its own citizens,” Shamsi argues, “he says it is up to the Executive Branch alone, without judicial review, to determine what process is due and to make that decision without any oversight — and that’s simply not the case in our constitutional system of checks and balances.” The ACLU is suing the White House to disclose its legal memos that justify targeted killings. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: The Obama administration has offered its most expansive defense to date of its policy authorizing the assassination of U.S. citizens abroad. In a speech at Chicago’s Northwestern University, Attorney General Eric Holder outlined what the White House billed as the legal rationale for its claimed right to kill U.S. citizens who belong to al-Qaeda or associated forces. Holder said it’s preferable to capture suspected terrorists when possible, but claimed the government also reserves the right to use lethal force. Specifically, Holder said the U.S. can target those who play an operational role in attacks that pose an imminent threat.

ATTORNEY GENERAL ERIC HOLDER: We must also recognize that there are instances where our government has the clear authority—and, I would argue, the responsibility—to defend the United States through the appropriate and lawful use of lethal force. This principle has long been established under both U.S. and international law. In response to the attacks perpetrated and the continuing threat posed by al-Qaeda, the Taliban, and associated forces, Congress has authorized the president use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerence under international law. The Constitution empowers the president to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

It is an unfortunate but undeniable fact that some of the threats that we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make—does not make such individuals immune from being targeted.

AMY GOODMAN: Holder’s speech comes five months after a U.S. drone killed the U.S.-born cleric Anwar al-Awlaki in Yemen. Another U.S. citizen, the Saudi-born Samir Khan, was also killed in the attack. A drone in Yemen two weeks later killed Awlaki’s 16-year-old son, also a U.S. citizen. The Obama administration has steadfastly refused to provide the specific legal case behind the killing of the three.

In keeping with White House policy, during his remarks Holder refused to even confirm the existence of the CIA-Joint Special Operations Command drone program that carried out the attacks. Holder’s speech was widely seen as the Obama administration’s response to a hail of criticism and legal challenges after more than two years of keeping its assassination program under a cloak of secrecy.

Last month, the American Civil Liberties Union filed a lawsuit seeking the release of government records on the drone strikes that killed the U.S. citizens in Yemen last year. The suit alleges the government has failed to adequately respond to the Freedom of Information Act requests and has unfairly invoked state secrecy privilege in refusing to disclose the information. The New York Times has filed a similar suit.

For more, we’re joined by Hina Shamsi, director of the American Civil Liberties Union’s National Security Project.

Welcome to Democracy Now!

HINA SHAMSI: Thank you for having me.

AMY GOODMAN: This was a major address yesterday that perhaps the ACLU helped bring on or forced to make happen. What do you make of what Attorney General Eric Holder said?

HINA SHAMSI: I think there are three important issues about his speech. First of all, it is a welcome gesture towards additional transparency. But problematically, it amounted to a broad defense of the chillingly expansive authority that the United States claims to be able to kill people, including its own citizens, far from any battlefield, without judicial review or oversight of the legal standards, the process and the evidentiary basis for targeted killing drone strikes. The speech left open more questions than it answered about exactly what the legal authority, the process and the standards are. And those two things together, the fact that there is this chillingly broad authority as well as the lack of true transparency, show the need for meaningful transparency, which requires the administration to release the legal memos justifying its authority to engage in targeted killing, which we have sued for—

AMY GOODMAN: What’s their rationale for not?

HINA SHAMSI: The administration takes the position that it will acknowledge that the DOD has engaged in drone strikes, but it refuses to let the CIA or the Office of Legal Counsel in the Department of Justice even acknowledge the existence of this program.

AMY GOODMAN: Let’s go back to Eric Holder. Here he’s explaining when and why the U.S. would use lethal force against a U.S. citizen.

ATTORNEY GENERAL ERIC HOLDER: 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. The American people can be, and deserve to be, assured that actions taken in their defense are consistent with their values and their laws. So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.

Now, 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.

AMY GOODMAN: Holder emphasized U.S. presidents do not need to seek permission from the federal court before acting against a U.S. citizen.

ATTORNEY GENERAL ERIC HOLDER: Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaeda or associated forces. This is simply not accurate. Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process. It does not guarantee judicial process.

AMY GOODMAN: ACLU’s Hina Shamsi, respond.

HINA SHAMSI: Problem here is that while Attorney General Holder acknowledges that the Constitution requires due process before the government takes the life of one of its own citizens, he says it is up to the executive branch alone, without judicial review, to determine what process is due and to make that decision without any oversight. And that’s simply not the case in our constitutional system of checks and balances. The public deserves a right to know what standards, evidence and criteria are used when the administration seeks to kill one of its own citizens, and the legal basis for that exercise of authority needs to be reviewed by the court because of the significant constitutional questions that are raised.

AMY GOODMAN: You’re representing the Awlaki family?

HINA SHAMSI: We represented the father of Anwar al-Awlaki in a lawsuit seeking disclosure of the criteria pursuant to which the government sought to kill his son.

AMY GOODMAN: Explain what happened exactly. How did Awlaki get killed, the U.S. citizen with him, and then his 16-year-old son, born in the United States—

HINA SHAMSI: Right.

AMY GOODMAN: —how he was killed weeks later?

HINA SHAMSI: Well, we brought a lawsuit in 2010 seeking the disclosure of the criteria pursuant to which the government had put Anwar al-Awlaki on a secret bureaucratic kill list. The judge, unfortunately, dismissed the case, saying that the father did not have standing, but also said that it was not the role of the courts to rule on the executive branch’s exercise of what it called "political question authority." Now, Anwar al-Awlaki was killed in fall, September of 2011, and with him died Samir Khan, who was a Saudi-born American citizen, and they were killed in a joint JSOC-CIA drone strike. And then, two weeks later, 16-year-old Abdulrahman al-Awlaki, Anwar al-Awlaki’s son, was killed in a second drone strike. And what we have done is sought, through our FOIA lawsuit, to get the legal memos justifying those drone strikes, as well as the evidentiary basis now for why the U.S. sought to kill these three of its own citizens.

AMY GOODMAN: Was there any explanation by the U.S. government for the killing of the 16-year-old?

HINA SHAMSI: There was no explanation whatsoever. But, you know, there’s a couple of really important things here, that—administration officials have gone on the record to defend the program, the targeted killing program, in the broadest terms. Other administration officials have leaked details about the program anonymously. In both of these instances, the administration touts its successes when it serves its own interest, but it refuses to provide true transparency or to make its justification to the public and to the courts. And that self-justifying approach is no longer tenable.

AMY GOODMAN: I wanted to turn to President Obama, who defended his administration’s unprecedented use of armed drone—of armed drones, during a so-called virtual interview that was conducted online in January. He also acknowledged the U.S. was carrying out drone strikes inside Pakistan. Obama made the comment after he was asked how he feels about the large number of civilians killed by drones since he took office.

PRESIDENT BARACK OBAMA: I want to make sure that people understand, actually, drones have not caused a huge number of civilian casualties. For the most part, they have been very precise precision strikes against al-Qaeda and their affiliates. And we are very careful in terms of how it’s been applied. So, I think that there’s this perception somehow that we’re just sending in a whole bunch of strikes willy-nilly. This is a targeted, focused effort at people who are on a list of active terrorists who are trying to go in and harm Americans, hit American facilities, American bases, and so on. It is important for everybody to understand that this thing is kept on a very tight leash.

AMY GOODMAN: That was President Obama. Your response?

HINA SHAMSI: Well, there are people who say that if President Obama authorizes these strikes, then we have to trust him. But I think those people have to ask themselves that we—how they would trust the next president and the president after to declare people, including American citizens, enemies of the state and to order their killing without any oversight or any judicial review whatsoever. And we simply don’t know whether or not civilians have been killed, and if civilians have been killed, what processes are in place to offer their families compensation or some kind of redress. This is a program that amounts to the executive branch saying, "Trust us." And that’s simply not enough.

AMY GOODMAN: During his speech on Monday, Attorney General Holder strongly criticized the use of the word "assassinate" to describe the targeted killings of U.S. citizens.

ATTORNEY GENERAL ERIC HOLDER: Some have called such operations "assassinations." They are not. And the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons that I have given, the U.S. government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful, and therefore would not violate the executive order banning assassination or criminal statutes.

AMY GOODMAN: Hina Shamsi, your response?

HINA SHAMSI: Well, the Attorney General is right that there’s an executive order that prohibits assassination, but I think referring to it this way is pretty much a straw-man argument. The issue is not whether we call it assassination or not; the issue is whether the targeted killing is legal under the laws of war, the Constitution and other laws that apply. And that, we simply do not have an answer to, and we are unable to debate, unless and until the administration releases its full legal justification, not just its summary defenses of it.

AMY GOODMAN: Does Obama differ from the Bush administration in any significant way when it comes to this policy?

HINA SHAMSI: President Obama has used more targeted killings than the Bush administration ever did. And we do not have the memos, the Office of Legal Counsel memos, that justify the targeted killing policy. And so, very disappointingly, we see the administration claiming a broad and dangerous authority without adequate public transparency, disclosure, and refusing to defend its authority in the courts.

AMY GOODMAN: I want to thank you very much for being with us, Hina Shamsi, director of the American Civil Liberties Union’s National Security Project. Thank you.

HINA SHAMSI: Thank you.

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