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Holder on Targeted Strikes: The Key Passages, with Commentary

Robert Chesney
Monday, March 5, 2012, 5:05 PM
In this post, I focus on the portion of the speech addressing the targeted use of lethal force, including against US citizens. To cut to the chase, the heart of the discussion comes when the Attorney General articulated a multi-factor scenario in which the government claims the authority to use lethal force on a targeted basis against a citizen, consistent with the Fifth Amendment.  That is, the speech asserts that Due Process permits targeting of a citizen at least when the target is: (i) located abroad rather than in the United States, (ii) has a senior operational role (iii) wit

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In this post, I focus on the portion of the speech addressing the targeted use of lethal force, including against US citizens. To cut to the chase, the heart of the discussion comes when the Attorney General articulated a multi-factor scenario in which the government claims the authority to use lethal force on a targeted basis against a citizen, consistent with the Fifth Amendment.  That is, the speech asserts that Due Process permits targeting of a citizen at least when the target is: (i) located abroad rather than in the United States, (ii) has a senior operational role (iii) with al Qaeda or an al Qaeda-associated force, (iv) is involved in plotting focused on the death of Americans in particular, (v) that threat is “imminent” in the sense that this is the last clear window of opportunity to strike, (vi) there is no feasible option for capture without undue risk, and (vii) the strike will comply with the IHL principles of necessity, distinction, proportionality, and humanity. Of course, there's a lot more than that.  Below the fold, I provide a paragraph-by-paragraph review of the targeting portion of the speech, with Holder’s lines in italics and introductory commentary from me preceding each section.  For what it's worth, my bottom line is that this is useful and informative up to a point, though none of it should come as a particular surprise to those who have been following the issues closely.  [See here for interesting commentary from Matt Waxman, by the way]. There are some key issues left unaddressed, though they are largely questions about targeted strikes more generally, including: (i) the nature of the internal legal review procedures in relation to both the applicable law of war concepts and the question of whether a particular fact pattern involving a citizen falls within the test articulated below (I say this with more of an eye on Agency operations, of course); (ii) more detail as to how feasibility of capture is assessed; and (iii) more detail as to the test that makes a group an al Qaeda associated force.  There are, no doubt, plenty of reasons why it is difficult to talk about such matters in more detail.   In any event, here is the paragraph-by-paragraph breakdown: A preference for capture...  In the relevant part of the speech, Holder opens by emphasizing that it is preferable to capture rather than kill terrorism suspects, in part because of the security gains associated with interrogating them:
It is preferable to capture suspected terrorists where feasible – among other reasons, so that we can gather valuable intelligence from them – but we must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.
The domestic law foundation... Holder then lays out the affirmative domestic legal foundation for using lethal force, starting with the AUMF...but also citing, quite properly, Article II authority to use force in national self-defense in situations where the threat of violence is imminent:
This principle has long been established under both U.S. and international law.  In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups.  Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law.  The Constitution empowers the President to protect the nation from any imminent threat of violent attack.  And international law recognizes the inherent right of national self-defense.  None of this is changed by the fact that we are not in a conventional war.
Force is not limited to Afghanistan...  Next, Holder endorses the view (previously expressed by John Brennan at the Harvard/Brookings event last fall, and just two weeks ago by Jeh Johnson at Yale) that the government’s authority is not limited to Afghanistan, either in a domestic or an international legal sense:
Our legal authority is not limited to the battlefields in Afghanistan.  Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.  We are at war with a stateless enemy, prone to shifting operations from country to country.  Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan.  Our government has both a responsibility and a right to protect this nation and its people from such threats.
Acting abroad requires either host state consent or else that the host state is unwilling/unable  to act... Holder then explains that the government is not saying that the United States can attack just anywhere it pleases in the world, but rather can act abroad only in locations where we either have host-government consent or where the host government is unable or unwilling to act to suppress the threat:
This does not mean that we can use military force whenever or wherever we want.  International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally.  But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.
Targeted strikes are not assassinations... Next up: rejecting the idea that individually-targeted strikes constitute “assassinations”:
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. 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.
Citizen targets and the Fifth Amendment...  None of the foregoing is novel, of course.  The real action begins at this point, when Holder begins to discuss the use of lethal force against citizens and the restraints imposed by the Fifth Amendment Due Process Clause:
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 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.
Balancing interests under Hamdi and Mathews v. Eldridge...  Building on Hamdi v. Rumsfeld, which in turn built on Mathews v. Eldridge, Holder provides a conventional account of how the so-called “procedural due process” concept works in doctrinal terms, with the competing individual and governmental interests compared to one another with reference to what procedural safeguards are reasonably possible in the circumstances:
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. Here, the interests on both sides of the scale are extraordinarily weighty.  An individual’s interest in making sure that the government does not target him erroneously could not be more significant.  Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks. 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-Qaeda in a foreign land – is among the gravest that government leaders can face.  The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.  So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.
At a minimum, force can be used against a citizen in the following circumstances....Against that backdrop, Holder then describes a set of circumstances in which deadly force lawfully can be used against a citizen.  Note that his language pointedly does not exclude the possibility of using force in other circumstances:
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.
Restating the test...  I wish the preceding paragraph had been formulated more clearly, but in any event it seems to me that there are as many as seven elements in that statement.  Read literally, Holder has defended targeted strikes against a citizen where the following conditions are met: the person must be (i) located abroad rather than in the United States, (ii) have a senior operational role (iii) with al Qaeda or an al Qaeda-associated force, (iv) with plotting focused on the death of Americans in particular, (v) with the threat being “imminent” (though not that this is defined in a broad sense, consistent with Brennan’s fall 2011 speech), (vi) with no feasible option for capture, and (vii) all subject to law of war principles.   And, again, note that he carefully did not describe this as the outer boundary of lethal force authority when it comes to a citizen. What do we mean by “imminent threat”.... Having stated this test, Holder goes on to explain what is meant by some of the key factors.  First up is that the threat be imminent.  Following past statements by administration officials, he rejects strict temporal imminence in favor of a “last window of opportunity” model, echoing a concept that I associate in my mind with some earlier writing by Michael Schmitt:
The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.  As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.  Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.  Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear.  Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.
What do we mean be “capture is not feasible”...  This is a critical part of the inquiry, and one that I do not think has been the subject of much commentary before.  Not a lot of granular detail is given, reflecting the idea that this is a fact-intensive inquiry:
Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question.  It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel.  Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack.  In that case, our government has the clear authority to defend the United States with lethal force.
What do we mean by “consistent with applicable law of war principles”... This part largely echoes what prior officials have said, but it is useful nonetheless to have a clear statement that when the US government—including the CIA, in my reading of this speech—uses lethal force, it does so subject to the principles of necessity, of distinction, proportionality, and humanity:
Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.  The principle of necessity requires that the target have definite military value.  The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally.  Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage.  Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering. These principles do not forbid the use of stealth or technologically advanced weapons.  In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.
Rejecting a requirement for advance judicial permission...This part is interesting.  The main line of criticism arising under the 5th Amendment has been that force cannot be used against citizens, on a pre-targeted, individualized basis, without the factual predicates for the action being put to the test in an independent, judicial forum.  Holder rejects that conclusion, in part apparently in reliance on the decision by Judge Bates not to adjudicate the habeas petition brought by al-Awlaki’s father, in part on comparative institutional competence grounds to the effect that the executive branch has superior access to relevant information and expertise (and capacity to make quick decisions) with respect to targeting decisions, and comparative institutional legitimacy grounds to the effect that such decisions are a “core function” of the executive branch:
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. 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.
Rejecting the idea that the Executive Branch is unchecked if there is no judicial check... This section of the speech concludes by pointing to other checking mechanisms, citing congressional oversight:
That is not to say that the Executive Branch has – or should ever have – the ability to target any such individuals without robust oversight.  Which is why, in keeping with the law and our constitutional system of checks and balances, the Executive Branch regularly informs the appropriate members of Congress about our counterterrorism activities, including the legal framework, and would of course follow the same practice where lethal force is used against United States citizens.
Targeting on the traditional battlefield is different...
Now, these circumstances are sufficient under the Constitution for the United States to use lethal force against a U.S. citizen abroad – but it is important to note that the legal requirements I have described may not apply in every situation – such as operations that take place on traditional battlefields.             
Concluding this section of his address...
The unfortunate reality is that our nation will likely continue to face terrorist threats that – at times – originate with our own citizens.  When such individuals take up arms against this country – and join al Qaeda in plotting attacks designed to kill their fellow Americans – there may be only one realistic and appropriate response.  We must take steps to stop them – in full accordance with the Constitution.  In this hour of danger, we simply cannot afford to wait until deadly plans are carried out – and we will not.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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