[JURIST] US Attorney General Eric Holder [official website], in a speech [transcript] Monday, framed the Obama administration’s policy toward the targeted killing [JURIST news archive] of US citizens abroad who are members of al Qaeda [GlobalSecurity backgrounder]. Holder’s comments also addressed the success of the federal courts and revised military commissions in prosecuting terrorism offenders, as well as the factors used to consider the choice of forum for individual defendants. Holder stressed that it was important to use both venues to bring justice in terrorism cases. His comments then turned to those situations requiring extra-judicial means of threat mitigation, noting that the Congressional authority to respond to threats posed by al Qaeda, the Taliban and associated forces with “appropriate and lethal force” is not limited in geographic scope and extends beyond the battlefield in Afghanistan, and can include the specific targeting of leaders. Holder then pointed to historic and current Supreme Court cases that show that US citizenship alone “does not make individuals immune from being targeted.” Holder said:

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause—including in a case involving a US citizen captured in the conflict against al Qaeda—the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat.

The attorney general indicated that lethal force would only be used in a foreign country when: there is an imminent threat of violent attack on the US, capture of the individual is not feasible and any actions would be consistent with the laws of war. Holder argued that while the US Constitution [text] grants the right of due process, it does not grant the right to judicial process; saying, “‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.” As result, Holder argued that the president is not required to seek court approval before taking action against a US citizen accused of being a senior operational leader of al Qaeda. Holder indicated that robust oversight of the operations and their legal frameworks is provided be appropriate members of Congress. The American Civil Liberties Union (ACLU) [advocacy website] issued a statement [press release] criticizing Holder’s remarks. Hina Shamsi, director of the ACLU’s National Security Project said, “Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact.” The ACLU also argued [statement] that while the attorney general claimed that these citizens have a right to due process, his speech also claimed that only the Executive Branch “should determine whether the due process requirement is satisfied.” There has been substantial debate in the legal community regarding whether the targeted killings of US citizens engaged against the United States with al Qaeda and associated groups is legal or a violation [JURIST op-eds] of the laws of war.

This speech marks another step in the legal response [JURIST news archive] to the war on terrorism in the wake of 9/11 [JURIST backgrounder]. Although not explicitly named, the speech is partially a response to killing of US citizen and senior al Qaeda leader Anwar al-Awlaki [BBC profile; JURIST news archive] by US forces. An Obama administration legal memorandum from last year found that the killing of al-Awlaki would only be legal if it were not feasible to take him alive. Al Awlaki was killed by a CIA drone strike [JURIST report] in Yemen in September. The strike marked the US government’s most successful attack against al Qaeda since the raid leading to the death of Osama bin Laden [JURIST report] in Pakistan last May. The US-born radical Muslim cleric reportedly used his English and Internet skills to recruit individuals for attacks in the US. The ACLU criticized the targeted killing as a violation of both US and international law [press release]. The US has increased drone strikes in Yemen to try and reduce al Qaeda’s power in the region and minimize the chaos spilling over the border into Saudi Arabia. The US targeted Awlaki in a strike last May but was unsuccessful. In August 2010, prior to al Awlaki’s death, the ACLU and the Center for Constitutional Rights (CCR) [advocacy website] filed a lawsuit [JURIST report] challenging the US government’s authority to conduct “targeted killings” against suspect terrorists. In addition to requesting the criteria used to place al Awlaki on a so-called “kill list,” the suit also asked the court to set standards describing when the government could constitutionally use lethal force against a U.S. citizen away from an active battlefield. The Obama administration invoked state secrets [JURIST report] while seeking to block the lawsuit. The suit was dismissed [JURIST report] on the grounds that it raised “political questions.”