Holder Speech on Target Killings etc.

I received a bit of vitriol for partially defending President Obama's authorization of the killing of al-Awlaki, including rejecting the "assassination" tag and some broad "anything goes" tag.

My sentiment is that killing "enemy combatants" (or whatever word is being used now) is authorized by law, judicial precedent and the AUMF 2001 (voted for by the likes of Ron Paul) in particular. "Citizens" are not exempt from this power. This power does not ban specific targeting.  There are various limits to it, including not allowing military force to be used against someone in NJ.  And, ideally, but I don't think it is compelled by current precedent, a citizen should have judicial process of some sort (not that al-Awlaki sought it) before a "kill order" is upheld.

AG Holder spoke about the general issue in a speech along with other stuff.  On that front, I support the release of the legal opinion drafted on targeted strikes with whatever minimal redaction required. Regardless, the speech is appreciated as is this Lawfare analysis of a key portion.

Various people do not appreciate the speech, but as seen by the comments here, there is a certain open ended nature to the criticisms that oversells their case. For instance, one person assumes I support some "war on terror" that was not referenced.  Also, the death penalty is put in the same category as killing people militarily.  This sort of thing just bothers me.  They are not the same thing.  West Wing noted this once and if killing people in our custody for civil crimes is seen as the same thing as killing people in a military conflict for the very reason we cannot get them, well, I'm sorry.  We are simply not on the same page.  They are not the same.  The speech also lists various limits and if people just won't care and will continue talking about unlimited power, it's hard to take it seriously.  Also, some still will argue that this makes opposition to torture of little value, again we have to re-litigate that torture is a unique wrong.

The Lawfare summarizes the rules set forth for targeted killing of citizens, noting that there is some wiggle room, underlining to me the need for a clear legal memorandum on the point and perhaps judicial review:

(i) located abroad rather than in the United States,
(ii) has a senior operational role
(iii) with al Qaeda or an al Qaeda-associated force,
(iv) is involved in plotting focused on the death of Americans in particular,
(v) that threat is “imminent” in the sense that this is the last clear window of opportunity to strike,
(vi) there is no feasible option for capture without undue risk, and
(vii) the strike will comply with the IHL principles of necessity, distinction, proportionality, and humanity.

So, no, the Obama Administration is not saying a citizen can be killed "anywhere" or even that a person could be. I also agree with Holder that the "loaded term" of "assassination" is misplaced here. This is not a matter of me LIKING the use of drones or supporting their use in various cases. Again, this point is treated as basically trivial by some critics, who speak of people like me as "Obama lovers" or those who think Obama can do no wrong etc.  Whatever.  This doesn't change the bottom line. 

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.  “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.

First, I would note that "due process" also applies to "persons" here, but that citizens should get more protection, including per, e.g. dicta back to the days of The Slaughterhouse Cases, abroad.  Second, in some sense, this must be right -- an obvious case is in the heat of things, including a police chasing a suspect and needing to use lethal force.  A police officer need not first get judicial authorization in each case.  Rules are in place that they must follow and after the fact, redress might be warranted if they are violated.  Authorization is not provided by the people who carry out drone attacks, rules of engagement followed.  Imperfect as they might be, such rules have real teeth in reducing use of force. Oversight also is available and the lack of enough of it is one problem I have with drones. 

Nonetheless, I would probably require more judicial process in this case than offered here, but (as is repeatedly the case) the ideal is not compelled by current precedent. But, you know who DID NOT actually seek judicial process here. And, rules are more lax in "battlefield" conditions, underlining the falsity of open-ended comments about misuse of force, since judicial consent isn't required in the heat of battle etc., even if American citizens are involved. Again, this is not a matter of it being IDEAL to use force.  I also think the AUMF 2001 is woefully overbroad and should be replaced forthwith.  Congress has no interest in so doing.

The current use of force is -- as usual -- is going to lead to excesses but it matters who is in control and what limits are in place.  Over the centuries, the rule of law has put limits on lethal force.  Real effects result even if the result is far from ideal. War remains hell, but if we ignore the various shades of hell out there, why try?  Who cares if Geneva Conventions are in place, since force will still be repeatedly used and many people held in cages for long periods of time?  Continue to press Holder et. al. to go further, but keep some perspective of what the problem truly is.