Holder says law gives ‘clear authority’ to kill US citizens overseas

Attorney General Eric Holder on Monday said the Obama administration has the “clear authority” to kill U.S. citizens overseas who are believed to be a terrorist threat.

“Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack,” Holder said. “In that case, our government has the clear authority to defend the United States with lethal force.”

Holder’s remarks at Northwestern University's law school represent the Obama administration’s first formal legal defense for the targeted killings of U.S. citizens on foreign soil, which some critics argue is unconstitutional.  

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The debate ramped up last September, after a U.S. drone attack in Yemen killed Anwar al-Awlaki, the American-born Muslim cleric and alleged leader of al-Qaeda in the Arabian Peninsula.

Though Holder did not directly reference al-Awlaki Monday, he laid out three possible circumstances for when the U.S. would be legally justified in killing an American citizen who is a senior operational leader of al-Qaeda and aims to attack U.S. citizens.

“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,” said Holder. 

In late 2010, Holder told ABC News that the U.S. “will do whatever we can” to “neutralize” al-Awlaki. 

While Republicans and Democrats heralded al-Awlaki’s killing as a great success, civil rights groups, such as the American Civil Liberties Union (ACLU), have strongly objected to the government’s use of lethal force against a U.S. citizen. 

In a lawsuit filed under the Freedom of Information Act (FOIA), the ACLU is demanding that the government disclose the legal basis it holds for making such a decision, which the administration has refused to disclose. 

On Monday, Holder said the administration takes special consideration of the Fifth Amendment’s due process clause and applies a “balancing approach” when dealing with U.S. citizens suspected of terrorism 

“In cases arising under the due process clause — including in a case involving a U.S. citizen captured in the conflict against al Qaeda — the court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process,” he said. 

“Where national security operations are at stake, due process takes into account the realities of combat,” Holder said.

Hina Shamsi, the director of the ACLU’s National Security Project, said Holder’s speech was a poor attempt to justify a killing program without actually handing over a proper legal defense.

“If the attorney general can discuss the targeted killing program at a law school, then the administration can surely release the legal memos it uses to justify its claimed killing authority, and also defend its legal justifications in court,” said Shamsi. 

“The targeted killing program raises profound legal and moral questions that should be subjected to public debate, and constitutional questions that should be considered by the judiciary.”

— This story was updated at 6:36 p.m.