Eric Holder, Targeted Killings, And the Looming Threat Of John Yoo

Normally, we would not let more than 48 hours pass between a major speech by the Attorney General of the United States defending targeted killings of U.S. citizens and our first discussion of this event. The speech Eric Holder gave on this topic Monday, however, does not exactly lend itself to rapid response. It presents one of the most difficult questions in national security policy — how to balance the need to react to threats quickly with the fact that quick action prevents intensive review or preemptive oversight of a commander’s decision to order a strike. And it concerns one of the most ambiguous passages in our Constitution.

Holder’s strongest point is his statement that there are ample precedents for military strikes that “target specific senior operational leaders” of hostile forces. He cites Admiral Isoroku Yamamoto, the Japanese commander U.S. forces killed in a targeted strike during World War II, and Osama bin Laden as two examples. Ultimately, however, Holder has to confront a more challenging legal question, what if bin Laden had been born in California, and thus was an United States citizen?

In Holder’s analysis, this question turns upon the meaning of the notoriously ambiguous Due Process Clause of the Fifth Amendment, which ensures that no person is deprived of “life, liberty, or property, without due process of law.” The Constitution’s text, however, offers little guidance on just what kind of process is “due” in a particular case. Must a court approve a targeted strike? Or Congress? Should a board of generals be convened? And just what would a review board or judge have to determine before authorizing a strike to move forward?

Holder proposes several questions that could guide this determination. The government would conduct a review to determine that the “individual poses an imminent threat of violent attack against the United States.” It would determine that “capture is not feasible” and that “the operation would be conducted in a manner consistent with applicable law of war principles.” Holder places the responsibility for determining whether or not these limits have been adequately addressed at the feet of the Executive Branch — and ultimately, the President himself.

As a constitutional matter, this is probably correct. Courts have historically stayed far away from tactical military decisions, and for good reason — judges are neither expert in military affairs nor equipped to review an order to execute a strike before the window of opportunity for an attack passes. Moreover, there’s nothing in the Constitution suggesting that, once Congress has given the president a broad grant to use military force against a particular enemy, that the president must go back to Congress to get new authorization to take actions that fit within the scope of that grant.

At the same time, however, any Post-Bush evaluation of the president’s wartime powers must take account of the problem of John Yoo. If President Obama has the power to authorize targeted strikes without first seeking outside approval, than so too would a less responsible president. Similarly, Yoo himself defended many of the Bush Administration’s most egregious human rights violations on the theory that the power to kill an enemy combatant must also include the power to do what you wish with them. In Yoo’s words, “death is worse than torture, but everyone except pacifists thinks there are circumstances in which war is justified. War means killing people. If we are entitled to kill people, we must be entitled to injure them.” So if the president can kill citizen combatants, why can’t he torture them?

As it turns out, there is a simple answer to this question, and you can find it right in the United States Code:

Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

One of the most well established principles in American law — stretching at least as far back as the Supreme Court’s 1804 decision in Little v. Barreme — is that Congress has the power to forbid the president from waging war in certain ways. John Yoo was wrong in no small part because Congress said he was wrong — the president cannot ignore the law, and thus cannot authorize torture.

Ultimately, this may be the only answer for Americans who do not want their president to have the power to target other Americans. Congress may forbid the practice, or require additional review before such attacks may occur. Until they do, however, Holder’s analysis is likely a correct statement of the law.