Attorney General Eric Holder argues citizenship doesn’t protect Americans actively involved in attacks against their own country.

Attorney General Eric Holder argues citizenship doesn’t protect Americans actively involved in attacks against their own country. Brian Kersey/AP

Obama administration offers new defense for killing U.S. citizens

But the counterterror policy raises as many questions as it answers.

President Obama took office promising to abandon many of the Bush administration’s counterterrorism policies. Three years later, the Obama White House is claiming the right to do something even the Bush White House never proposed: kill American citizens overseas who are suspected of links to al-Qaida and other terror groups.

The administration has signed off on operations that led to the deaths of at least three U.S. citizens, but key aspects of its thinking about the legal justification for such strikes have long been clouded in the same secrecy that surrounds the broader CIA-led effort to hunt down terrorist leaders across the globe. 

In a high-profile speech on Monday in Chicago, Attorney General Eric Holder offered the administration’s most expansive explanation to date of the reasons it believes Americans like Anwar al-Awlaki can be marked for death. Holder also offered a forceful defense of such killings, arguing that citizenship doesn’t protect Americans actively involved in planning or carrying out attacks against their own country.

“Any decision to use lethal force against a United States citizen -- even one intent on murdering Americans and who has become an operational leader of al-Qaida in a foreign land -- is among the gravest that government leaders can face,” Holder said in his speech at Northwestern University’s law school. “The American people can be -- and deserve to be -- assured that actions taken in their defense are consistent with their values and their laws.”   

The speech raised as many questions as it answered. Holder didn’t offer any detail about the other Americans it was pursuing, explain who in the administration needs to sign off on the killings of U.S. citizens affiliated with terror groups, or precisely define the legal terms under which Americans could be targeted. He didn’t address the operational aspects of such strikes, including whether they are carried out by the CIA or by the military’s elite Joint Special Operations Command.  

The remarks instead seemed designed to carry out a pair of related missions: reassure outside critics that lethal force would only be used against a small number of Americans -- and only under a set of three specific conditions -- and combat the growing perception that Obama’s counterterror policies have become more extreme than those of the Bush administration. 

It’s far from clear that Holder’s speech will pull that off. Morris Davis is a retired Air Force colonel who served as the chief prosecutor at Guantanamo Bay before resigning and becoming a harsh critic of the detention camp and the military commission process itself. In an interview, he called the new policy deeply worrisome. 

“There are those signs with Bush’s picture saying, 'Do you miss me yet?’” he said. “I’m almost going to the point that I do. Even Bush didn’t say he had the unilateral right to kill.”

The White House has already retained -- and expanded -- a host of controversial Bush-era counterterrorism programs. Obama has signed off on four times as many lethal drone strikes inside Pakistan as Bush had. The president has expanded the nation’s drone war to new battlefields in Yemen and Somalia. Guantanamo Bay remains open, and the military commissions which Obama criticized so harshly during his 2008 presidential campaign resumed last year. With the recent killings of three U.S. citizens, the Obama administration has added a new tactic that goes beyond anything put in place by the Bush White House.

Holder offered a multi-part defense for the administration’s approval of strikes like the drone attack in Yemen last year which killed Awlaki and a second American citizen, al-Qaida propagandist Samir Khan. Awlaki’s American-born son, Abdulrahman, 16, was killed in another U.S. air strike in Yemen just weeks later.

The attorney general said such strikes would only be carried out if three conditions were met. First, Holder said that the executive branch has to have determined that the U.S. citizen “poses an imminent threat of violent attack” against the U.S. Second, it has to involve a situation where it’s not “feasible” to capture the militant alive. Finally, the strike has to cause only minimal collateral damage and “use weapons that will not inflict unnecessary suffering.”

“The unfortunate reality is that our nation will likely continue to face terrorist threats that, at times, originate with our own citizens,” Holder said. “When such individuals take up arms against this country and join al-Qaida in plotting attacks designed to kill their fellow Americans, there may be only one realistic and appropriate response.”

Still, Holder gave no ground on one of the most contentious aspects of the policy: the administration’s insistence that it can decide which citizens to kill on its own and without needing any judicial review. The Constitution, he said, “guarantees due process, not judicial process.” 

Many of the legal definitions for a strike against a U.S. citizen, meanwhile, are vague enough that they could be used to justify attacks against a wide range of Americans overseas, including some with arguably minimal ties to al-Qaida. 

Awlaki, for instance, was an English-speaking cleric who was thought to have inspired militants like Nidal Hasan, the sole suspect in the 2009 Fort Hood shooting. Khan edited an al-Qaida propaganda magazine called “Inspire.” Neither one was an operational leader of al-Qaida or appears to have been involved in carrying out, or even directly planning, an imminent attack against U.S. targets.

“There’s no evidence that either of these guys directly participated in any hostilities,” Davis said. “It’s hate speech, but there are a lot of people who engage in hate speech who don’t get targeted for assassination.”

Other legal experts said they sympathized with the administration’s efforts to wrestle with complex issues of life and death which go far beyond the issues raised in previous conflicts. Robert Chesney, a law professor at the University of Texas who has written extensively about counterterrorism, said, “The reality is that the Founders didn’t think about this, the courts haven’t really addressed it, and there’s not very much relevant prior precedent.”

“The speech will not change the mind of anyone who held the view that there should be judicial review of such targeting decisions, but it is notable nonetheless that the scope of authority claimed here … is relatively narrow and defensible,” he said.

The administration is widely believed to have put a similar kill-or-capture designation on Adam Yahiye Gadahn, a California-born al-Qaida leader who uses his fluent English to issue blood-curdling calls for new attacks against other Americans, a role once filled by Awlaki himself.  

In a recent YouTube video, Gadahn told would-be militants that it is easy to buy assault rifles in the U.S. that could be used in shopping malls and other public areas. “What are you waiting for?” he asked.

Gadahn and other American-born militants are doing all they can to trigger new attacks on their fellow citizens. The Obama administration, without apology, is now making clear that it will do all it can to kill those militants before they succeed.