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More on Holder

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Some additional thoughts on the Holder speech:

1. I’m generally in agreement with Adam/Marcy/Scott/ et al regarding the question of due process and judicial oversight in the targeting process To be sure, there could be contexts in which a situation is so critical that the executive cannot waste time seeking judicial approval or facilitating judicial oversight. However, it is not at all clear that the case of Anwar al-Awlaki fits this context . The U.S. believed that al-Awlaki resided in Yemen for a long period, and that he had acted as a senior operational leader for some time. There was ample opportunity to submit the al-Awlaki case to some form of judicial oversight, if not judicial approval; while submitting the details of the strike itself to a judge might be onerous, the facts had not changed appreciably in the weeks and months prior to the attack.

2. Holder argued that the death warrant only applies to Americans targeted overseas, but it is not 100% clear why he distinguishes between foreign and domestic jurisdictions. The distinction may rest on the feasibility question; we assume that the United States government has the ability to capture terror suspects within the United States, or at least give them a reasonable chance of surrender. Also, the only organizations currently operating armed drones are prohibited from operating in the United States. Nevertheless, some clarification as to why a drone strike against a terror suspect in a heavily fortified US compound would be improper while the same drone strike on a foreign target would be acceptable would have been helpful.

3. One of the most important questions regarding the rules that allowed the killing of al-Awlaki involve the breadth of the mandate; who else could the United States government order killed without public due process? A wide variety of Americans have engaged in behaviors that brush the edges of the the boundaries established by Holder. Paul Robeson and Jane Fonda harshly criticized the United States while abroad (the latter in a country engaged in war with the US). Iva Ikuko Toguri D’Aquino, an American citizen long suspected of being “Tokyo Rose,” was accused of engaging in Japanese propaganda efforts during World War II. In these cases, the lack of connection to specific military planning against the United States would presumably provide protection; none of the three were suspected of playing any operational role in Communist or Japanese war planning. However, given the ambiguous nature of the Holder’s metrics for evaluating “senior operational leadership,” the executive branch could conceivably have claimed justification based on undisclosed evidence of direct collaboration in attacks against the United States. In the case of Robeson at least, the lack of affiliation with an organization deemed by statute to be at war with the United States would probably provide additional protection.

The story might be different for such opponents of the government as Timothy McVeigh or John C. Breckinridge. Were capture of McVeigh deemed infeasible, and were he deemed to play a senior operational leadership role in a terrorist organization, a drone strike might just fit under Holder’s rules. Much would depend on whether the authority to order such a strike depends on Congressional authorization or is inherent to the power of the Presidency; Holder dances around this issue, although he does argue that groups not specifically affiliated with Al Qaeda (and thus not subject to the AUMF) are exempt from military commissions. Nevertheless, it is not impossible to imagine the Justice Department finding some statutory support for executive action against a suspected domestic terrorist such as McVeigh. With regards to Breckinridge, the United States obviously believed itself at war against Southern rebels, which would presumably allow the targeting of rebel leaders regardless of their status as American citizens.

4. The biggest issue, as Scott et al have suggested, is that the due process in question is neither public nor subjected to any kind of independent scrutiny. I do take the idea that Anwar al-Awlaki could have tried to surrender seriously; it’s by no means clear that he had even a vague interest in challenging the any evidence that the administration had against him. But the fact that the evidence largely remains secret is really a problem for treating this process as legitimate. It’s obviously best not to take the government at its word on the question of killing enemies of the state, even if those individuals genuinely are enemies of the state. Indeed, several other parts of the doctrine allow what amount to political judgement calls regarding the wisdom and legality of particular strikes.

5. The “imminent” issue is also very problematic. Imminent appears to mean “last clear opportunity to strike” rather than the more traditional definition of “about to happen.” There’s nothing good about this, although I can surely understand how the administration found itself in this place. For one, “last clear opportunity to strike” can be interpreted in remarkably expansive terms; how can the state be sure that someone is or isn’t going to pop his head up again? For another, the “last clear opportunity to strike” has bad implications when extended to other questions, such as whether it’s legal to strike Iran during a “zone of opportunity” under an “imminent threat” logic even if Iran is several years away from a nuclear weapon.

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