During a speech at Northwestern University on March 5th, Attorney General Eric Holder gave the most detailed look into the process of how and why the United States decides to kill people it deems national security threats. Tellingly, the administration provided a legal justification for targeted killings through a university speech rather than a Justice Department memorandum. In a speech, no legal footnotes are required, and rhetoric rather than dispassionate judicial logic is most important. Holder’s speech offered a concise description of a process that seems very problematic and was couched in the language of patriotism so as to make its more incongruous points more palatable to the listener.
Holder offers no new arguments or information, but instead an official description of a legal process that was until this point only conjecture. He could be commended for this if the process he described wasn’t completely bogus. His speech justified a massive concentration of power in the executive branch of the federal government and a dismissal of the Supreme Court’s legal authority simply because We Are At War With Evil Terrorists.
As Glenn Greenwald summarized the speech: “We are at War; the Battlefield is everywhere; Presidents have the right to spy on, detain and kill combatants without court permission; the Executive Branch is the sole organ for war and no courts can interfere in the President’s decisions.” All justifications follow from the first statement: we are at war. The war on terror is an amorphous and undefined endeavor, so justifications for the executions of Americans allegedly involved in this war without legal oversight seem remarkably specious.
Targets that constitute “operational” or “imminent” threats to American civilians or armed forces invoke this broad executive power, according to 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.
Holder here is solidifying the executive branch’s power to supersede legal adjudication as well as oversight from other branches of government. The question of who is an operational threat and how they become one is the key question of this entire debate and it is a question decided by a shady internal process which may or may not be accurate.
Holder rejects the idea that the executive branch is unchecked if there is no judicial check:
“Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process….
The Supreme Court ruled in 2004 that “the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the government’s case and to be heard by an impartial adjudicator,” which contradicts Holder’s assertion and invites scrutiny of his efforts to separate the executive and judicial branches. Perhaps Holder knows what the administration is doing is illegal, and wishes to completely bar the legal system from adjudicating anything under the auspices of the war on terror to supersede any pesky lawyers.
Holder’s deep trust in the executive branch’s internal decision making process begs the question of what governing body decides when these targets cross the threshold from propagandist to operational or imminent threat. In the case of Anwar Al-Aulaqi, who decided he was an operational threat and why? Precisely because al Qaeda is not a conventional enemy, courts are needed to assure that potential targets are indeed terrorists.
Whether Aulaqi had an operational role in al Qaeda is still hotly debated. Many experts saw him as a propagandist who did not have any active role in planning terrorist operations – and almost no one has ever claimed he was a senior leader within al Qaeda. It is generally believed he was a marginal figure who ran the propaganda magazine Inspire.
On the other hand, Holder assumes that we will take his claims at face value, but why should we when the US has gotten things wrong before? More importantly, why won’t the administration release some evidence, even heavily redacted, that supports any indirect claims about Aulaqi? Holder declines to do so, and when prodded for justifications the Obama Administration has continuously fallen back on the States Secrets Clause. It should be noted that a legal justification (or an attempt at one) does exist but is and most likely will always be completely secret.
The whole thing is shrouded in so much secrecy that it makes any thinking citizen nervous. Holder’s assurance that the executive branch is subject to “robust oversight” without ever detailing the specifics of such oversight implies a pernicious “just trust us” mentality that has become all too familiar within the administration. The administration assumes the public will simply forget about Aulaqi. Holder treated criticism of the Aulaqi assassination like a minor inconvenience to be casually dismissed. The government’s contempt for inquiring members the populace has chilling and consequential implications for the nation’s future.
In all fairness, Holder’s concentration of executive powers does streamline decision making processes in time-sensitive scenarios. If members of al Qaeda are actively plotting to kill Americans, we don’t want the response to be impeded by administrative bureaucracy. But the need for effective action must be balanced with Constitutional oversight, and the government has tipped the scale dangerously in the direction of secrecy and executive power. As I wrote two months ago: “As citizens, many of whom are pleased that Aulaqi is gone, we ache to see evidence than can assuage our fears of a Government seriously abusing its power. Why such insistence on secrecy?”