When the U.S. government can kill you, explained

Adam Serwer writes: On Monday, the Obama administration explained when it’s allowed to kill you.

Speaking to students and faculty at Northwestern University law school, Attorney General Eric Holder laid out in greater detail than ever before the legal theory behind the administration’s belief that it can kill American citizens suspected of terrorism without charge or trial. In the 5,000-word speech, the nation’s top law enforcement official directly confronted critics who allege that the targeted killing of American citizens violates the Constitution.

“‘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.”

Who decides when an American citizen has had enough due process and the Hellfire missile fairy pays them a visit? Presumably the group of top national security officials—that, according to Defense Secretary Leon Panetta, decides who is targetable and forwards its findings to the president, who gives final approval.

There won’t be any drone strikes in Denver anytime soon. But you might want to be careful when traveling abroad, because Holder made it clear that there are no geographical limits in the fight against Al Qaeda. “Neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan,” Holder said. “We are at war with a stateless enemy, prone to shifting operations from country to country.”

Holder’s speech did outline some concrete limits to when the US government is allowed to target its own citizens. The target has to pose an “imminent threat of violent attack” to the US and be beyond the ability of American authorities to capture, and the strike can’t violate international standards governing the use of force by killing too many civilians or noncombatants.

But don’t assume that when Holder says “imminent threat of violent attack,” he means that you’re actually part of a specific plot threatening American lives. “The Constitution 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,” Holder said. That would introduce an “unacceptably high risk of failure.” When he refers to “failure,” Holder presumably means failing to kill the target before the attack or plan for an attack materializes, not the possibility that the government might accidentally kill an innocent person.

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.

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4 thoughts on “When the U.S. government can kill you, explained

  1. Clif Brown

    “we are at war with a stateless enemy…”

    Wait a minute, didn’t Obama say early on that the War on Terror is over?

    Holder’s address could have been 50,000 words and the fact would still remain that administrations decide what they want to do and then come up with a concoction of words to “explain” it. A lawyer can make it all the way to attorney general, but is still a lawyer.

    How might it be possible to separate the Justice Department from the Executive? Looking over history, it seems like job 1 for the DoJ is to cover for the President’s policies, continually making silk purses out of sows ears, in this case deconstructing due process. A big problem is that the President appoints the AG, a recipe for bending the law like a noodle.

    Is the highest law the Constitution or is it the desire of the President? The AG puts on his magician’s hat and, PRESTO, the latter leaps right out of the former…if only you look at it the right way!

    How about the DoJ under the judicial branch?

  2. nowhere

    “When the President does it, that means it is not illegal” At least Nixon wasn’t claiming the legal right to murder anyone he pleased, whenever and wherever he pleased. Well, we can sure see why the current administration gave a pass on prosecuting the crimes committed by the previous one: they intended to commit exactly the same crimes and call them legal themselves. If someone had told me 15 years ago that one day words like these would be coming from some of the highest offices in the U.S.A. I would have thought they were paranoid conspiracy nut.

  3. Tom Hall

    ” ‘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.”

    These are among the most chilling words that can be uttered by a government official. The deliberate attempt to separate the notion of due process from the authority and supervision of the judiciary is a matter of the gravest order and consequence. Rights and obligations obtained under the Magna Carta and the US Constitution have been flouted by successive administrations. No nation can enjoy “security” under such violent, arbitrary rule. The liquidation of citizens by a state (to say nothing of the killing of foreign nationals around the world) which declares itself immune from judicial constraint is of course a hallmark of dictatorship.

  4. zebowillis

    What I am disgusted by is the fact that no one is bothering to protest this. Not one of the anti-war politicians or left wingnuts are out there telling the Government “not in our name”. I’m am disgusted by the craven politics of it. Cause it’s Obama it’s cool, but if it’s Bush by god it’s wrong. Disgusting.

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