Today was a big day. As Adam Serwer put it, bluntly, “the Obama administration explained when it’s allowed to kill you.” Yes, you, a US citizen. Attorney General Eric Holder, in a much-anticipated speech, addressed this question to students and faculty at Northwestern University law school. While Holder’s speech covered three issues – detention authority, terrorist trials, and targeted killings – I will only summarize his remarks and offer my own thoughts on the latter issue.
While I have addressed the legal issues of targeted killings elsewhere, the targeted killing of a US citizen abroad – without a prior trial – is a unique issue. Although Anwar al-Awlaki, a US born cleric who became a prominent operative in al-Qaeda, is the lodestar of this debate, it is worth mentioning that he was not the first US citizen killed abroad in a drone strike. In 2002, Kamal Derwish, who had links to a group affiliated with al-Qaeda, was killed in Yemen by a CIA-launched Hellfire missile from a drone which targeted Qaed Salim Sinan al-Harethi, the mastermind behind the USS Cole bombing.
Now, to borrow Robert Chesney’s summary of the related provisions of Holder’s 5,000-word speech, a targeted killing of a US citizen is consistent with Due Process requirements, as long as the target
(1) is located abroad rather than in the US,
(2) has a senior operational role in al-Qaeda or associated forces,
(3) is involved in plotting focused on the death of Americans in particular,
(4) presents an imminent threat
(5) allows no feasible option for capture without undue risk, and
(6) the strike will comply with International Humanitarian Law principles.
First, why a US citizen must be abroad to be targeted seems legally arbitrary. In fact, Holder (rightfully in my opinion) recognizes that this is not a geographically confined conflict: “[N]either Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.” So, why not permit targeting in the US? (Disclaimer: This would be a very bad thing and I am glad this limitation exists.) Presumably, Holder mentioned this limitation to make the already unpalatable killing of a US citizen more palatable. But if the threat is domestic, imminent, and not a single collateral death will ensue, why, legally, can a US citizen not be targeted in the US?
Second, if imminence is already a requirement, why then is having a “senior operational role” legally necessary? This, again, seems arbitrary. (If imminence was not a requirement, “senior operational role” could be seen as a way around the imminence problem. See EmptyWheel on this point.)
Finally, it is significant that Holder recognizes the “capture requirement”, because when US citizens are not involved, this point has, as of now, not been conceded. Why this requirement should only apply to the targeting of US citizens, again, seems legally arbitrary.
In the coming days, it will be well worth your time to follow the commentary closely. Your life may well depend on it. (Just kidding. But not really.)