The Power to Kill

By The New York Times, Editorial

12 March 12

resident Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability.

That, regrettably, was the most lasting impression from a major address on national security delivered last week by Attorney General Eric Holder Jr.

There were parts of the speech worth celebrating - starting with Mr. Holder's powerful discussion of why trying most terrorists in civilian courts is best for punishing them and safeguarding America. But we are deeply concerned about his rejection of oversight and accountability when it comes to killing American citizens who are suspected of plotting terrorist acts.

A president has the right to order lethal force against conventional enemies during conventional war, or against unconventional enemies in unconventional wars. But when it comes to American citizens, there must be compelling evidence that the threat the citizen poses is imminent and that capturing the citizen is not a realistic option.

The case that has brought the issue to international attention is the Sept. 30, 2011, drone strike in Yemen that killed Anwar al-Awlaki, an American citizen, who United States officials say was part of Al Qaeda's command structure. Another American was killed in the strike, and Mr. Awlaki's 16-year-old son, also an American citizen, was killed in an attack two weeks later.

The killings touched off a storm of criticism. Mr. Awlaki's father tried to sue the government, which used the "national secrets" defense to have the case tossed out. But the administration has refused to acknowledge that the killing took place or that there is in fact a policy about "targeted killings" of Americans.

It has even refused to acknowledge the existence of a Justice Department memo providing legal justification for killing American citizens, even though that memo has been reported by The Times and others. It is beyond credibility that Mr. Obama ordered the Awlaki killing without getting an opinion from the department's Office of Legal Counsel. Even President George W. Bush took the trouble to have lawyers in that office cook up a memo justifying torture.

The administration intended Mr. Holder's speech to address the criticism and provide a legal argument for the policy, but it was deeply inadequate in important ways.

Mr. Holder agreed that killing an American citizen requires that he "poses an imminent threat of violent attack against the United States," that capture "is not feasible," that the target has military value, that other people are not targeted intentionally, that the potential "collateral damage" not be excessive and that the weapons used "will not inflict unnecessary suffering."

But he gave no inkling what the evidence was in the Awlaki case, and the administration did not provide a way in which anyone other than the people who gave the order could review whether the standards were met. Mr. Awlaki made tapes for Islamist Web sites that justified armed attacks on the United States by Muslims. But was he just spouting off, or actively plotting or supporting attacks?

All Mr. Holder did say was that the president could order such a killing without any judicial review and that any such operation would have "robust" Congressional oversight because the administration would brief Congressional leaders. He also said the administration provided Congress with the legal underpinnings for such killings.

In the Awlaki case, we do not know whether that notification was done in advance or after the fact, if it was done at all. We do know the administration has not given Congress the legal memo with the underlying justification for killing American citizens, because Senator Patrick Leahy, chairman of the Judiciary Committee, was asking Mr. Holder for it just the other day.

Perhaps most disturbing, Mr. Holder utterly rejected any judicial supervision of a targeted killing.

We have said that a decision to kill an American citizen should have judicial review, perhaps by a special court like the Foreign Intelligence Surveillance Court, which authorizes eavesdropping on Americans' communications.

Mr. Holder said that could slow a strike on a terrorist. But the FISA court works with great speed and rarely rejects a warrant request, partly because the executive branch knows the rules and does not present frivolous or badly argued cases. In Mr. Awlaki's case, the administration had long been complaining about him and tracking him. It made an earlier attempt to kill him.

Mr. Holder said such operations require high levels of secrecy. That is obvious, but the FISA court operates in secret, and at least Americans are assured that some legal authority not beholden to a particular president or political party is reviewing such operations.

Mr. Holder argued in his speech that judicial process and due process guaranteed by the Constitution "are not one and the same." This is a straw man. The judiciary has the power to say what the Constitution means and make sure the elected branches apply it properly. The executive acting in secret as the police, prosecutor, jury, judge and executioner is the antithesis of due process.

The administration should seek a court's approval before killing an American citizen, except in the sort of "hot pursuit" that justifies the police shooting of an ordinary suspect. There should be consequences in the event of errors - which are, tragically, made, and are the great risk. And the administration should publish the Office of Legal Counsel memo. We cannot image why Mr. Obama would want to follow the horrible example set by Mr. Bush in withholding such vital information from the public.