Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.Yeah, but what about the killing of American citizens?!? Huh, huh, huh? Well, other than the absurd notion that killing other enemies who target the United States is fine but using lethal force against someone in the exact same situation is a war crime simply because the target is an American citizen, American citizenship, it turns out, is not a ticket to freedom to take up arms or incite violence against America in a foreign country - at least it hasn't been since the civil war.
Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, 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.
Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.But but but... due process! How dare the administration claim that the president has the authority to just kill anyone without due process just on his say so! He is violating their Constitutional rights!!!!
Actually, no. There is due process - of the laws of combat.
But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.Holder goes on to lay out the specific process of the law clearly under which lethal force may be used to eliminate a target that poses imminent danger to the United States on foreign soil.
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 U.S. 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.
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.But but but... no courts! The president is deciding to target American citizens - nevermind that these citizens are operational leaders of terrorist groups plotting attacks on the United States and won't show up for court dates in the countries where they lived - without court review! That's taking away due process!!!
But then, Holder kind of takes the wind out of their sail here, too.
Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.Of course, in Glenn Greenwald's world, judicial process is the same as due process - even for avowed enemies of the United States who are operational leaders of a terrorist group targeting the United States. Hell, in Glenn Greenwald's world, if a hijacked plane was coming at the White House, the Air Force would probably be required to obtain a subpoena for the passenger list, check to see if there are American citizens who were hijacking it, and then get a court order before shooting it down. If in the mean time, it happens to hit the White House, so be it, I guess. Because hey, the president can't unilaterally decide to kill a US citizen without court review, even if that citizen has openly and obviously declared war against the United States! Why, shooting down an airplane hijacked by an American citizen would be even worse than targeting an American citizen who is a leader of Al Queda in Yemen - since this would be taking out an American citizen inside the United States!
The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.
Still, perhaps the part of Holder's address that will most get under Glenn Greenwald's (and that of his friends on the absolutist Left) skin is this:
This is an indicator of our times – not a departure from our laws and our values. For this Administration – and for this nation – our values are clear. We must always look to them for answers when we face difficult questions, like the ones I have discussed today. As the President reminded us at the National Archives, “our Constitution has endured through secession and civil rights, through World War and Cold War, because it provides a foundation of principles that can be applied pragmatically; it provides a compass that can help us find our way.”ZOMG, Holder and Obama believe in a leaving, breathing Constitution that can be applied pragmatically to address the questions and challenges of a given time and a given situation! Nothing is more of an anathema to ideological extremists than pragmatism. Just as the far Right believes the Constitution protects the "right" of southern states to enact racist voting laws, so do the pretend-Leftists believe that the Constitution requires that organizational and operational principals (and soldiers) of foreign organizations at war with the United States be hurled before the courts, even if capture is not feasible and even if they present an imminent threat.
Protecting the constitutional rights of Americans is critical especially in a time of conflict. However, the notion that active leaders and members in groups openly at war with the United States are shielded from the consequences of their treason by the means of a US passport is preposterous. This is what Eric Holder showed in his speech yesterday. When the wingnuts on the right scream "The Constitution is not a suicide pact," Eric Holder's response is, "Indeed it isn't, and in fact, we do not have to choose between security and liberty." But Glenn Greenwald's response seems to be: "No, actually, the Constitution is a suicide pact."