On 'Targeted Killing' Speech, Eric Holder Strikes Out

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Why won't the administration answer the big question: What is the legal reasoning behind targeted terror killings? 

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The problem with "big" government speeches, the ones that are promised and promoted months in advance, the ones that purport to tackle the thorniest issues of the day, is that they require big political figures to deliver them. And whatever else Attorney General Eric Holder is -- a cautious lawyer, an establishment guy, a risk-adverse careerist, a stable hand at Justice -- he is decidedly not a larger-than-life official with an outsized portfolio or a penchant for going beyond where his president, the constitutional law scholar, wants him to go.

This dynamic helps explain why the attorney general's "big" speech Monday on the Obama Administration's secret "targeted killing" program is such a disappointment on so many different levels. But for a few sentences here and there, but for a few graphs about how Congress has dangerously treated this administration with far less trust and respect than the last administration, Holder's remarks at Northwestern University School of Law could largely have been written (and delivered) by any of the Bush-era attorneys general.

Six weeks ago, the Daily Beast's Daniel Klaidman wrote an excellent piece highlighting the background behind the administration's decision to "reveal publicly the legal reasoning behind its decision to kill the American-born leader of al Qaeda... Anwar al-Awlaki." In the end, Klaidman reported that the White House had decided not to reveal much at all. Klaidman memorably quoted a deputy national security advisor as suggesting the American people would get a "half Monty" instead of the "full Monty" and that's precisely what happened.

A half-Monty or, you could say, a half-hearted, half-assed explanation of why the executive branch believes it has the legal authority, and the constitutional power, to use "lethal force" against Americans living abroad. That is, if those citizens are deemed to pose "an imminent threat of violent attack upon the United States," if they cannot feasibly be captured, and if their killing can be conducted in compliance with "fundamental law of war principles." The speech cited not a single Supreme Court case for its sweeping justifications. Not one.

Anyone who cares about this issue at all understands that what matters first is the legal rationale for the administration's drone-strike policy. We need to know what the legal arguments are for such proclamations by the executive branch that, for example, the due process clause of the Constitution does not guarantee "judicial process" when a citizen's life is on the line. What Holder delivered instead was what we already know -- the political rationale for the "targeted killing" program. The New York Times told us that years ago.

It's just not good enough to offer general platitudes about adherence to the Constitution. Everybody says that. The scoundrels who drafted the "torture memos" said that. It means nothing without specifics. And the memo was short on legal specifics. For example, only two federal statutes were cited, both having nothing to do with the drone-strike program. On that we got from Holder phrases like this: "This is an indicator of our times -- not a departure from our laws and our values." Honestly, it's both, right?

FIVE QUICK THINGS ABOUT THE HOLDER SPEECH

1. We are a nation at war. It may be an endless war, never formally declared by the Congress. It may be a war against ambiguous enemies. But it's our war nonetheless. And the attorney general, early on in his prepared remarks, made sure to remind us that "like scores of attorneys and agents at the Justice Department, I go to sleep each night thinking of how best to keep our people safe." I'll defer to James Fallows about this but it seems to me that the time has long passed for our attorneys general to be pretending that they are standing some guard post on some battlefield wall somewhere all day and night.

2. Baffling and dangerous. The only part of Holder's address where I thought he showed some spine, some "big speech" moxie, was the part about Congressional opposition to federal civilian trials for terror suspects. This is a sore subject with me. Of complaints about the Justice Department's successful record of prosecuting terror suspects in federal court, Holder said:

Which is why the call that I've heard to ban the use of civilian courts in prosecutions of terrorism-related activity are so baffling, and ultimately are so dangerous. These calls ignore reality. And if heeded, they would significantly weak -- in fact, they would cripple -- our ability to incapacitate and punish those who attempt to do us harm.

Here, the attorney general is exactly right. Only he didn't press his point. And he certainly didn't take the opportunity to announce that the administration was going to prosecute in federal court any terror suspect it chose to prosecute in federal court, which is the response that best comports with my understanding of core executive branch functions under the Constitution. Now, that would have been worthy of "big speech" status.

3. The military commissions. They remain, as they were in late 2001 when President George W. Bush first authorized them, the best way forward toward closing the terror-law prison at Guantanamo Bay, Cuba. And had the Bush White House done things right from the beginning the base would be closed by now. The attorney general in his speech rightly talked about how the commissions have improved. But the American people, I suspect, want to hear less talk and see more progress. Nearly nine years to the day he was captured, isn't it time we prosecuted Khalid Sheik Mohammed? Holder didn't even mention his name.

4. Imminent threat of violent attack. That's the standard. Think for a second about the differing interpretations that can be given to four of the five words in that phrase. What is imminent? What is threat? What is violent? What is attack? The attorney general says that a citizen can be targeted only after the government "has determined, after a thorough and careful review, that the individual" possess a threat worthy of lethal force. And who gets to determine whether that review is "thorough and careful"? Why, the executive branch, of course.

5. Necessity. Distinction. Proportionality. Humanity. The Four Horsemen of the Apocalypse. Here's how the attorney general explained it:

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.

Call it the Obama Doctrine. Call it the Holder Doctrine. Just don't call it a policy the legal justifications of which have been fully explained to the American people.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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