Holder gives legal defense for al-Awlaki killing

By Nedra Pickler

Associated Press

Published: Monday, March 5 2012 12:00 a.m. MST

Al-Awlaki's father sued to try to stop the government from killing his son, arguing he had to be afforded the constitutional right to due process. But U.S. District Judge John Bates in Washington refused to intervene in al-Awlaki's case because he said the courts do not have the authority to review the president's military decisions.

Holder pointed out that decision in his speech. "The Constitution guarantees due process, not judicial process," Holder said.

At least three recently filed lawsuits have sought to force the Obama administration to publicly release its legal justification for the attack, contained in a secret Justice Department memo. The Associated Press also filed a FOIA request for the memo, which was denied. The AP has appealed.

Hina Shamsi with the American Civil Liberties Union, one of the groups suing for the memo, said if Holder can discuss the targeted killing program publicly, the memo should be released and its position defended in court.

"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," Shamsi said. "Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power."

University of Notre Dame international law expert Mary Ellen O'Connell also said the memo should be released to reveal more about the administration's position.

"From what we know so far, the memo is highly reminiscent of the torture memos written during the Bush administration, in which irrelevant U.S. cases and statutes are cited in order to give the CIA a green light," she said. "The relevant international law does not permit targeted killing far from battle zones."

Holder said it's "not a novel concept" to target enemy leaders for death, pointing out such attacks were made against al-Qaida's chief Osama bin Laden and during World War II, including shooting down an aircraft specifically because it was carrying Japanese Admiral Isoroku Yamamoto, leader of the attack on Pearl Harbor. He said Congress has given the president authorization to use lethal methods under a resolution passed a week after the Sept. 11 terrorist attacks that authorizes the use of all necessary force to prevent any future acts of international terrorism against the United States. He said that authority was not limited to battlefields in Afghanistan, because the nation faces a threat of terrorism from "a stateless enemy, prone to shifting operations from country to country."

"It is preferable to capture suspected terrorists where feasible — among other reasons, so that we can gather valuable intelligence from them," Holder said. "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."

Holder said that doesn't mean the administration can use military force whenever it wants and that it must respect other nations' sovereignty before acting alone on their soil. "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."

Associated Press writer Michael Tarm in Chicago contributed to this report.

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