On 'Targeted Killing' Speech, Eric Holder Strikes Out

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



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?


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.

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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, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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