Friday, March 9, 2012

Attorney General Holder on Targeted Killings

Eric Holder, the Attorney General of the United States, recently clarified the United States' policy on targeted killings of American citizens abroad. According to the Attorney General, the targeted killing of a U.S. citizen would be lawful under the following circumstances:

“[A]n 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.”

For the first time ever, the Obama Administration has attempted to clarify legal parameters of the use of force against American citizens in a counter-terrorism operation. While this is a laudable endeavor, many questions remain unanswered, as other scholars have already pointed out. Who in the Administration is supposed to make the determination of which individuals pose such imminent threats? What kind of a review is necessary? What does the concept of "imminent threat" entail? And what does the feasibility of capture imply - would the promise of an otherwise unfriendly foreign government to help in the capture of a wanted suspect suffice?

Another important point to emphasize is that the Attorney General seems to imply that a variant of human rights law applies to the targeted killing of American citizens abroad. The Attorney General stated that the operation would have to be conducted consistently with applicable law of war principles; however, law of war principles do not contain the above-mentioned conditions of imminent threat and non-feasibility of capture. In other words, enemy combatants can be targeted under the laws of war at any time, irrespective of whether they pose an imminent threat and of whether they can be captured easily. On the one hand, it is reassuring to hear that the Attorney General believes that human rights law is applicable to targeted killings. On the other hand, it is disappointing to think that, according to the Attorney General and the Obama Administration, human rights law only applies to targeted killings of American citizens, but not to targeted killings of other countries' nationals. Marko Milanovic on EjilTalk has already made this point, in an excellent blog post. I agree wholeheartedly with Marko: the distinction between American citizens and non-citizens for the purposes of targeted killings is not only morally repugnant but potentially unlawful. Our Constitution, in the 5th Amendment Due Process Clause, states that “no person … shall be deprived of life, liberty, or property, without due process of law.” The Constitution does not state that "citizens" should not be deprived of life, liberty or property without due process of law. And our Bill of Rights fails to make this distinction as well. As Marko has written in the post mentioned above, "Why exactly is Al-Awlaki’s life deserving of more legal protection than (say) Osama bin Laden’s is simply beyond me."

Finally, what is also normatively incomprehensible is the distinction between the possibility of targeting American nations on U.S. soil versus the same kind of targeting outside the U.S. Why would it be lawful to target and kill American citizens when they are found abroad when it would be perfectly unlawful to target and kill the same citizens if they were to be found home? In the United States, it would be illegal to shoot any suspect at point blank, without due process of law. Why such killings should become lawful the minute that the suspect crosses the border to Canada or to Mexico remains a mystery.

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