EARLIER THIS month at Northwestern University, Eric Holder gave an extraordinary speech — perhaps the most extraordinary ever from a sitting attorney general. The gist of his message was this: If you are a US citizen, the president of the United States can issue an order to have you killed without review or approval from any other branch of government.
No president has ever asserted such authority. This administration has already acted upon it. On Sept. 30, Anwar al-Awlaki, an American-born member of Al Qaeda, was targeted and killed by a drone strike in Yemen. His 16-year-old son was killed two weeks later.
Explaining the policy after the fact, Holder was emphatic that the administration would only target citizens abroad who present an “imminent threat’’ and whose “capture is not feasible.’’ Any action would follow “law of war principles.’’ But neither Holder nor the White House has offered any evidence that the killings actually met these conditions. And while Holder’s assertions might reassure us that the president thought hard before making the decision, they don’t make it right.
Holder insisted that no judicial review or congressional approval was necessary, and that the president’s review and decision constituted the “due process’’ required under the Fifth Amendment of the Constitution. This is the same president who, as senator, voted against the use of military tribunals - a process involving lawyers, judges, and the possibility of appeal - arguing they provided insufficient due process for terrorists.
Despite the gravity of the issue and the dramatic departure from past precedent, the halls of Congress have been almost silent. Many liberal Democrats who apoplectically condemned President Bush over “warrantless wiretaps’’ now can’t seem to find the time to even discuss the matter. By their rationale, you need court approval to eavesdrop on a suspected terrorist, but not to kill him.
Republicans undermined their ability to argue for checks and balances when they opposed habeas corpus - judicial review for terrorists detained on American soil. Many also fought efforts to require checks on the tools used to fight terrorism - checks such as protections for civil liberties under the Patriot Act and standards for evidence in military trials. This track record makes it tough to stand up now. (As a senator, I supported habeas rights for detainees.)
After Holder’s speech, Senator Ron Wyden, an Oregon Democrat, was one of the few politicians to raise serious concerns about the president’s incredible assertion of power. He wants to know how much evidence is needed to order assassinations, whether targets must be given the opportunity to surrender, and, most important, whether this Obama doctrine gives the president the right to kill Americans inside the United States. (Holder’s speech referred several times to terrorists “in a foreign country,’’ but never made the legal distinction clear.)
Even if we stipulate that secret presidential review meets the Constitution’s due process requirement, the question remains: Is this really due process of which we can be proud? These terrorists are evil. They may deserve punishment, even death. But we also have an obligation to maintain systems of justice and security worthy of our founding ideals and the standards we expect of others. Why not ask a Federal Intelligence Surveillance Court judge - they operate in secrecy - to review the order? Why shouldn’t the congressional intelligence committees be required to authorize the program?
We are winning the fight against Al Qaeda, and we were winning before the assassination of al-Awlaki. If an American were killed as part of a broad operation against terrorist operatives, few would argue for special legal consideration. But allowing the president to target US citizens for death without any independent review is unnecessary, and sets a dark precedent for both allies and enemies around the world.
Would the United States condone Russia targeting Chechen rebels in Paris or Chicago, or Colombia taking out FARC members in Mexico City or Miami? Holder papered over these dark images by insisting that local governments must consent — as if leaders in Yemen or Pakistan had a choice.
Like Alberto Gonzales before him, Holder maintains that he understands these tools are powerful, and — not to worry — that he and the president will be careful to ensure they are not abused. They miss the point. Checks and balances, due process, and judicial review are not something put in place because we think today’s attorney general and president are bad people. Instead, they assure us that if bad people are elected to power, deplorable things won’t happen.
Wyden made the basic point with startling clarity: “Every American has the right to understand when their government believes it’s allowed to kill them.’’ President Obama’s reply appears to be: when I say so.