Below is today’s column in Foreign Policy magazine on Attorney General Eric Holder’s speech at Northwestern University Law School. UPDATE: FBI Director declines to answer whether the new doctrine allows the killing of citizens in the United States.
On Monday, March 5, Northwestern University School of Law was the location of an extraordinary scene for a free nation. U.S. Attorney General Eric Holder presented President Barack Obama’s claim that he has the authority to kill any U.S. citizen he considers a threat. It served as a retroactive justification for the slaying of American-born cleric Anwar al-Awlaki last September by a drone strike in northeastern Yemen, as well as the targeted killings of at least two other Americans during Obama’s term.
What’s even more extraordinary is that this claim, which would be viewed by the Framers of the U.S. Constitution as the very definition of authoritarian power, was met not with outcry but muted applause. Where due process once resided, Holder offered only an assurance that the president would kill citizens with care. While that certainly relieved any concern that Obama would hunt citizens for sport, Holder offered no assurances on how this power would be used in the future beyond the now all-too-familiar “trust us” approach to civil liberties of this administration.
In his speech, Holder was clear and unambiguous on only one point: “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.” The use of the word “abroad” is interesting because senior administration officials have previously suggested that the president may kill an American anywhere and anytime, including within the United States. Holder’s speech does not materially limit that claimed authority, but stressed that “our legal authority is not limited to the battlefields in Afghanistan.” He might as well have stopped at “limited” because the administration has refused to accept any practical limitations on this claimed inherent power.
Holder became highly cryptic in his assurance that caution would be used in exercising this power — suggesting some limitation that is both indefinable and unreviewable. He promised that the administration would kill Americans only with “the consent of the nation involved or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.” He did not explain how the nation in question would consent or how a determination would be made that it is “unable or unwilling to deal” with the threat.
Of course, the citizens of the United States once consented on a relevant principle when they ratified the Constitution and later the Bill of Rights. They consented to a government of limited powers where citizens are entitled to the full protections of due process against allegations by their government. That is clearly not the type of consent that Holder wants to revisit or discuss. Indeed, he insisted that “a careful and thorough executive branch review of the facts in a case amounts to ‘due process.'”
Holder’s new definition of “due process” was perfectly Orwellian. While the Framers wanted an objective basis for due process, Holder was offering little more than “we will give the process that we consider due to a target.” And even the vaguely described “due process” claimed by Holder was not stated as required, but rather granted, by the president. Three citizens have been given their due during the Obama administration and vaporized by presidential order. Frankly, few of us mourn their passing. However, due process appears to have been vaporized in the same moment — something many U.S. citizens may come to miss.
What Holder is describing is a model of an imperial presidency that would have made Richard Nixon blush. If the president can kill a citizen, there are a host of other powers that fall short of killing that the president might claim, including indefinite detention of citizens — another recent controversy. Thus, by asserting the right to kill citizens without charge or judicial review, Holder has effectively made all of the Constitution’s individual protections of accused persons matters of presidential discretion. These rights will be faithfully observed up to the point that the president concludes that they interfere with his view of how best to protect the country — or his willingness to wait for “justice” to be done. And if Awlaki’s fate is any indication, there will be no opportunity for much objection.
Already, the administration has successfully blocked efforts of citizens to gain review of such national security powers or orders. Not only is the list of citizens targeted with death kept secret, but the administration has insisted that courts do not play a role in the creation of or basis for such a list. Even when Awlaki’s family tried to challenge Obama’s kill order, the federal court declared that the cleric would have to file for himself — a difficult task when you are on a presidential hit list. Moreover, any attorney working with Awlaki would have risked being charged with aiding a terrorist.
When the applause died down after Holder’s speech, we were left with a bizarre notion of government. We have this elaborate system of courts and rights governing the prosecution and punishment of citizens. However, that entire system can be circumvented at the whim or will of the president. The president then becomes effectively the lawgiver or lifetaker for all citizens. The rest becomes a mere pretense of the rule of law.
Holder was describing the very model of government the Framers denounced in crafting both the Constitution and Bill of Rights. James Madison in particular warned that citizens should not rely on the good graces and good intentions of their leaders. He noted, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” The administration appears to have taken the quote literally as an invitation for unlimited authority for angels.
Of course, even those who hold an angelic view of Obama today may come to find the next president less divine. In the end, those guardian angels will continue to claim to be acting in the best interests of every citizen — with the exception, of course, of those citizens killed by them.
Jonathan Turley
Foreign Policy Magazine, March 6, 2012
The lower animal are carnivorous because thee higher conciseness has fictionally chosen the varied idea of it.
Best give it no mind immediately.
E. Slovik,
Nice Adams quote. Well played.
anon nurse,
Those comments were interesting. I especially liked the one suggesting that the AUMF needs to be terminated. That is the get our of jail card that Bush and now Obama have been relying on to skirt our Constitution. Maybe we can order a drone attack on the AUMF. We obviously don’t need any dued process first.
An editorial post in a state newspaper pointed out that state’s increased problem with rural production and consumption of methamphetamine. Wikipedia confirms it is a spreading problem in the Midwest and the West, even excluding California—–in RURAL population segments.
What does that tell me?
It says that while Obama’s imperial powers are a dagger aimed at our liberties, it is nothing compared to the rural population joining the ghettos in assenting to the uselessness of their fates, and the preferability of a replacement to the traditional “moonshine”—–even that homemade.
Even crack and cocaine are surpassed as uppers of choice.
So America is rotting from within, due to the cumulative one-percenters pressures, overwhelming those traditional practitioners of the American way of life—–which has been long a chimera when agrobusiness has replaced the small farmer; resource exhaustion has made W.Va: etc., jobless, futureless areas..
Meanwhile, Obama warns those who would resist that he will take them out in his own “due process” at his pleasure.
How many Americans are brave enough to protest? Their numbers will be thinning soon. How many are not dependent on food stamps for their food?
Do they have the energy or time to protest? Where are their Guthries, etc.?
Where is our hope? Or do we just get our kicks at the Jon Stewart show and go back to our usual stance morally in life.
Where is JC when we need him? Or does the apocalyptic have to get worse first?
Pray brothers, pray. The one-percenters are counting their money in loud tones and can’t hear you. Neither do our leaders nor our priests.
Sorry I am not an attorney so some of the legal subtleties escape me here. But could someone please again distinguish, in principle, this policy of due process from the policy of death squads recently used so effectively in several South American countries?
I think I get the main point. Due process is carried out by highly motivated patriots, usually military men, who only want to defend the state against enemies who would destroy it. Where as, death squads are carried out by highly motivated patriots, usually military men, who only want to defend the state against enemies who would destroy it. But aside from those differences, are there any legal principles that distinguish due process from death squads?
Please, I am not questioning the motivation or patriotism of those who carry out due process. I am just wondering, how can we tell when it is due process, acting where judicial process is impossible, and when it is some kind of death squad?
It has been a while since I finished high school civics so I am a bit rusty on this. But were do we get that due process lies solely in the executive branch by way of an unknown procedure carried out by unnamed government officials? Doesn’t due process sort of imply public scrutiny?
Doesn’t due process imply some notice to the accused, a clear statement of the accusation, with an opportunity deny the supposed facts?
Doesn’t due process imply some sort of procedure with checks and balances?
What next, rounding up everyone who disagrees? Oh! Silly me. We don’t have to round up those who give aid and comfort to the enemy by disagreeing. We can just shoot them, right?
One has to wonder just how many are being radicalized by our policies.
Jonathan Turley’s March 6th article in The Guardian:
“So, Eric Holder, we should just trust that the president won’t assassinate us?”
“That, in effect, is the pledge the Obama administration’s attorney general says has replaced our constitutional protections”
by Jonathan Turley
March 6, 2012
http://www.guardian.co.uk/commentisfree/cifamerica/2012/mar/06/eric-holder-trust-targeted-assassination
(The comments are interesting…)
Well said Professor.
“Is This The Country We Want To Keep”
Yes. Thank you, Jonathan Turley.
We’re in a world of trouble…
(Thomas Drake, speaking at Sam Adams Awards ceremony:
http://therealnews.com/t2/index.php?option=com_content&task=view&id=33&Itemid=74&jumival=819
“What country do we want to keep?
We increasingly no longer govern ourselves, as in of, for, and by the people. Consider the nonstop number of U.S. military actions around the world these days. And when did Congress last issue a formal declaration of war, the only branch of government, the only body in the United States federal government system that can actually declare war? When was that? Consider the ramming through—is absolutely up-to-date, right now, in this moment, what’s going on. Consider the ramming through of the Patriot Act a bare month after 9/11, an act, I would add, that NSA was already violating with even more secret programs when it was obvious that not a single member of Congress read it through thoroughly. Does any single member of Congress read their bills through thoroughly? And have you wondered what is really the secret interpretation by the executive branch of section 215 in the Patriot Act? And what about Section 1031, 1031, the current National Defense Authorization Act bill that would authorize the indefinite detention, I repeat, the indefinite detention of American citizens.
I used to monitor East Germany when I flew in RC-135s during the latter part of the Cold War—an absolutely fascist state. Given what I have experienced over the past number of years, I have a lot of bad memories.
…
What else are we willing to give up? I gave up a lot. I have a lot to deal with in facing what I faced with the government for the past four years.
Are we becoming the national security state under surveillance always, the N.S.S.U.S.A.? Is secret government the new fig leaf for a quaint and outmoded Constitution? Orwell’s 1984 is real, and now already, I repeat, already screamingly relevant. Only the government can create a police state. No one else can. And our technology can now make that happen. There is a long list, a long list of both private industry and government actions that are ripping away our privacy and our Fourth Amendment rights as we speak and our ability to speak freely about it. I challenge you, I challenge you all to demand accountability, to update our protections in the internet age, to insist upon adherence to the Constitution, conservative and liberal and independent like. Even in the open press we know enough about what both the industry and government are doing.
Do you care? What will you do about it? What country do we want to keep?
Do we want to continue to have a burgeoning military-industrial-congressional-intelligence-surveillance-cybersecurity-media complex? For whom does it benefit? Do we want to concede the eroding of basic human rights? Why? Because we fear enemies and that creates a need for security, and are then persuaded that human rights are ignored because of the primacy of the national security state beyond legitimate protections and identifying those who would actually do us harm, both abroad and domestically, as a unifying cause for obsessing over national security and the use of fear by the government to control the public and private agenda? What country do we really want to keep?
So I leave you with this as I channel Frederick Douglass. On August 3, 1857, Frederick Douglass delivered a West India Emancipation speech. At Canandaigua, New York, on the 23rd anniversary of the event, he said, quote (please listen very carefully): “The whole history of the progress of human liberty shows that all concessions yet made to her august claims have been born of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being, putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there is no progress. Those who profess to favor freedom and yet deprecate agitation are men who want crops without plowing up the ground; they want rain without thunder and lightning. They want the ocean without the awful roar of its many waters.” Let me translate into today’s language. Power and those in control concede nothing, I repeat, concede nothing without a demand. They never have and they never will. Every one of us, every one of us in this room and beyond this room, each and every one of us must keep demanding, must keep fighting, must keep thundering, must keep plowing, must keep on keeping things struggling, must speak out, and must speak up until justice is served, because where there is no justice there can be no peace.
What country do we want to truly keep? Consider what actions you will take when you leave this evening. After all, it is our country. So take the necessary action to conserve the very best of who we are and can be for this generation, as well as future generations to come.”
End of speech
Attorney General Eric Holder Defends Legality of Targeted Killings of U.S. Citizens Overseas
Democracy Now
3/6/12
http://www.democracynow.org/2012/3/6/attorney_general_eric_holder_defends_legality
Summary:
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.
Guest: Hina Shamsi, director of the American Civil Liberties Union’s National Security Project.
Yes, very well argued.
I do not know what has become of the citizens of this nation. This populations willing acceptance and cheerleading for a dictatorship is my greatest concern. I sat in horror as large group of faculty and students of the U. of Michigan “law” school applauded with a standing ovation to these very claims by Harold Koh. There was probably five of us not participating in the ovation. It feels very surrealistic to see people applauding the wanton killing of others, to include their fellow citizens. This action simply cannot be erased by saying the Republican guy will do it too. I want to quote from a poster on another site because this person puts into perspective what Obama supporters are doing when they applaud, fund raise, excuse, attack others who point out what he is actually doing:
“Posted by satyrich
…Imagine for one second how a Pakistani or Libyan or Iraqi looking at this picture of Americans holding up pro-Obama posters must look, after four years of what we would consider war crimes and terrorism if they were carried out by anyone but a Western power…”
It is important to imagine how that feels and what that means, both to people overseas and to fellow citizens who will be targeted because the US is full of people who acquiesce and even cheer for totalitarianism.
Very well said JT.
http://www.brennancenter.org/content/event/glenn_fine_discusses_government_oversight/
Thanks for laying it out Professor. Perhaps it’ll make it into Obama’s in-box. Or maybe he’s not on the distribution list for “inconvenient reminders”.
Raff,
I think AN said it yesterday or so…. Who are the terrorist……
AY, l
ike in Roman dominated Jesus-land they make keep their religions, torture each other with quaint local practices, etc—-but the right of crucifying remains with Rome—–as does taxation.
Rafflaw,
no Al Quaeda has not won, it was we who recognized them as unwitting allies in reaching our ultimate goal—–the conquest and totalitarianazation of America. Unwitting allies are best, you don’t have to pay them.
To those who offered “muted applause” to Holder:
“If ye love wealth better than liberty,
the tranquility of servitude
better than the animating contest of freedom,
go home from us in peace.
We ask not your counsels or your arms.
Crouch down and lick the hands which feed you.
May your chains set lightly upon you,
and may posterity forget that you were our countrymen.” — Sam Adams
Holder’s declaration of imperial Presidential powers is the first step to the nightmare that I just had.
An America where the all individuals (seen) were reduced to collis in status, where the possibility of unrest could not be assume bred out of the group, and thus required control forms preventing assembly of groups over 20 persons, single line passage of persons with control gate at 10-20 yard intervals.
Coffee breaks cafeterias were arrange fo max four at a table, mostly one on one seating, and twenty to the room.
Those without on-line aural inplants, ie foreign visitors, were equipped with radio host type earphone/microphone combos. etc etc
Perhaps this was in reaction to seeing Holder’s speech yesterday her at Turley’s linked in by a commenter. That and the NDAA and all the other shit thats happened.
More when I can make it cogent and concise.
Good point AY. Who gets to review the almighty Executive decision to kill an Evil citizen? Noone of course. That would take too much time and be so constutional in an unconstitutional world. Has al-Qaeda finally won?
Questions heard or read around the world…. What about the law of the country they are shot in….. They may not deem the person so shot a terrorists…… Just pondering….