Eric Holder Says Its Constitutional to Target US Citizens for Assassination

Two United States citizens killed in targeted assassinations in Yemen. President Obama claimed responsibility for the CIA actions saying it was a blow to Al-Qaeda., a photo by Pan-African News Wire File Photos on Flickr.

March 5, 2012, 8:59 p.m. ET

Holder Defends Antiterror Policies

Attorney General Makes Legal Case for Targeting American Citizens Who Pose Threats From Abroad

By JULIAN E. BARNES and EVAN PEREZ
Wall Street Journal

It is constitutional for the U.S. government to kill a U.S. citizen posing an imminent terrorist threat to the country if capturing that person isn't feasible and the strike is conducted in accordance with the laws of war, Attorney General Eric Holder said Monday.

At a speech at Northwestern University Law School, Mr. Holder offered the administration's most forceful defense of the September killing of Anwar al-Awlaki, a leader of al Qaeda in the Arabian Peninsula, with a drone strike.

The speech was one in a series of addresses by Obama administration officials aimed at reassuring allies in Congress and overseas about the legality of the government's counterterrorism operations, including an increasing reliance on strikes by drone aircraft.

Prominent legal voices within the administration, including top lawyers at the Pentagon, State Department and Central Intelligence Agency, have been pushing for a more full-throated defense of the government's counterterrorism programs. Many are concerned with keeping the cooperation of allies who help pinpoint terrorism suspects.

Mr. Holder made only glancing reference to Mr. Awlaki, but stated clearly that when faced with a "citizen terrorist" who may be impossible to capture, the government has "the clear authority to defend the U.S. from lethal force."

Legal experts said Mr. Holder drew narrow lines for the circumstances in which a strike on a U.S. citizen would be allowed. He said the target must be in a foreign country, act as a senior operational leader of al Qaeda or associated forces, and have active plans to kill Americans.

Mr. Holder said the U.S. would use lethal force only in compliance with the laws of war—a reference to rules codified in the Geneva Conventions but also less formal customs guiding behavior in conflicts. Those include minimizing collateral damage, targeting only combatants and avoiding weapons t causing unnecessary suffering.

The strikes against U.S. citizens, Mr. Holder said, were also consistent with the U.S. Constitution. Critics of the Awlaki killing have said his due-process rights under the Fifth Amendment were ignored when the U.S. decided to put him on the target list without a trial or judicial oversight.

The speech didn't quiet critics on the left. "Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact," said Hina Shamsi, director of the American Civil Liberties Union's National Security Project.

Robert Chesney, a professor at the University of Texas Law School, said the speech could be reassuring to some uneasy with the administration's use of drones to target American citizens engaging in terrorism.

"It will give comfort at least to some that this claim of authority is construed quite narrowly," Mr. Chesney said.

Some administration officials are concerned the country's moral and legal standing could be undermined by what critics say is a failure to provide legal justification for U.S. counterterrorism operations. Officials are worried that, if not more clearly explained, the U.S. conduct could set a precedent for other countries developing their own drone programs

Some within the administration argued against Mr. Holder's speech, skeptical about describing the secret counterterrorism strikes in too much detail. Other officials have expressed worries that laying out the justification for drone strikes would invite additional lawsuits seeking even more information.

Write to Evan Perez at evan.perez@wsj.com