March 5, 2012 -- To kill or not to kill?
Under what conditions can or should the United States government target and kill -- without trial -- a U.S. citizen suspected of plotting terrorism?
Attorney General Eric Holder today provided the most detailed terms to date on the legal principals behind the U.S. drone campaign and the U.S. government's legal authority to target and kill U.S. citizens such as Anwar al-Awlaki, a suspected high-profile al Qaeda recruiter.
"Let me be clear: An operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: 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," Holder said his speech at the Northwestern University Law School. "The evaluation of whether an individual presents an 'imminent threat' incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States."
"Some have called such operations 'assassinations.' They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings," Holder continued in his prepared remarks. "The U.S. government's use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful -- and therefore would not violate the Executive Order banning assassination or criminal statutes."
Although Awlaki was clearly a top terrorist target, two other U.S. citizens have been killed by American strikes in Yemen, including Awlaki's son, though those deaths have been viewed as "collateral damage" and were not specifically targeted.
Awlaki was killed in a Sept. 30, 2011, drone strike along with Samir Khan, another American citizen from North Carolina who had never been charged by the Justice Department with a crime. Khan was alleged to have been a prolific propagandist for Al Qaeda in the Arabian Peninsula and main force behind the online publication Inspire, an English-language al Qaeda magazine dedicated to violent jihad and how-to-ideas on terrorist attacks.
Awlaki's 16-year-old son was also killed by the United States when he reportedly ran away from the family home in Yemen in an attempt to try and find his father. Abdulrahman al-Awlaki, who was born in the United States had gone to Yemen to be with family, was killed weeks after his father's death in another drone strike along with two other alleged al Qaeda operatives he may have been staying with.
In response to Holder's remarks, Hina Shamsi, director of the American Civil Liberties Union's National Security Project, called the logic behind the legal killing of American citizens "chillingly broad."
"While the speech is a gesture towards additional transparency, it is ultimately a defense of the government's chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny," Shamsi said in a statement today.
The issue of being able to target and kill U.S. citizens in counter-terrorism operations was first addressed by then Director of National Intelligence Dennis Blair in February 2010.
"We take direct actions against terrorists in the intelligence community. If…we think that direct action will involve killing an American, we get specific permission to do that," Blair told the House Permanent Select Committee on Intelligence.
Holder's remarks broadly made reference to the post-Sept. 11, 2001 Authorization for Use of Military Force passed by Congress, which the Bush administration often cited in some of their controversial counter-terrorism policies such as detaining U.S. citizens in military custody and the NSA's warrantless wiretapping program.
"Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law," Holder said today. "The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war."
Holder in his speech made no reference to the Justice Department's legal memos from the Office of Legal Counsel authorizing the targeting of Americans.
The New York Times reported on the existence of the memos in October 2011. After ABC News filed a Freedom of Information Act requests to the Justice Department's Office of Legal Counsel concerning the memos, the department said that they could neither confirm nor deny the existence of any documents on the subject of Awlaki or the justified targeting and killing of U.S. citizens in counter-terrorism operations.
The legality of the program was addressed by Presidential candidate Rep. Ron Paul (R-TX) who denounced the Obama administration for the controversial tactic.
"According to the Fifth Amendment of the U.S. Constitution, Americans are never to be deprived of life, liberty, or property without due process of law. The Constitution is not some aspirational statement of values, allowing exceptions when convenient, but rather, it is the law of the land. It is the basis of our Republic and our principal bulwark against tyranny. Last week's assassination of two American citizens, Anwar al-Awlaki and Samir Khan, is an outrage and a criminal act carried out by the President and his administration." Rep. Paul said in an Oct. 10, 2011, statement.
Officials have previously acknowledged that the Justice Department and the National Security Council were highly involved in drafting the authorities when they were first disclosed by DNI Blair.
Before his death, top counter-terrorism officials acknowledged that Awlaki and al Qaeda's affiliate in Yemen to be the top terrorism concern to the United States.
"I actually consider al Qaeda in the Arabian Peninsula with al-Awlaki as a leader within that organization probably the most significant risk to the U.S. homeland," Michael Leiter said before Congress last February when he was the Director of the National Counterterrorism Center.
Awlaki was linked to numerous terrorism investigations in the United States serving as a key individual espousing terrorist acts in his sermons which were posted online. Fort Hood shooter Nidal Hasan had exchanged emails with Awlaki before he killed 13 people and wounding more than 30 in an assault on Fort Hood in November 2009.
Awlaki is believed to have inspired several other terror plots in the U.S. as well and was key in providing operational instructions Umar Farouk Abdulmutallab in the attempted Christmas Day underwear bombing of Northwest flight 253.
In addition to the more recent strikes, the American government has killed U.S. citizens abroad since the War on Terror began. In 2002, the CIA killed American-born Kamal Derwish, a member of the "Lackawanna 6" terror group during a CIA Predator drone strike. Derwish was driving in a car with other members of al Qaeda, the government said.
In 2008, a missile strike in Somalia killed American Ruben Shumpert, a Seattle man suspected of being an Islamist radical. Shumpert was wanted by federal authorities on gun and counterfeit currency charges. He had agreed to plead guilty but fled the country days before sentencing in 2004.