It's John Yoo's America, We Just Have To Live Here

By Steve Hynd

Attorney General Eric Holder has been explaining the Obama administration's stance on targeted killings without prior trial, including those of US citizens.

TPM:

The Obama administration believes that executive branch reviews of evidence against suspected al-Qaeda leaders before they are targeted for killing meet the constitution�s �due process� requirement and that American citizenship alone doesn�t protect individuals from being killed, Attorney General Eric Holder said in a speech Monday.

�Due process and judicial process are not one and the same, particularly when it comes to national security,� Holder said. �The Constitution guarantees due process, not judicial process.�

Broadly outlining the guidelines the Obama administration has used to conduct lethal drone stikes overseas, Holder said the U.S. government could legally target a senior operational al Qaeda leader who is actively engaged in planning to kill Americans if the individual (1) posed an imminent threat of violence; (2) could not feasibly be captured; and (3) if the operation was conducted in line with war principles.

Such a use of lethal force against that type of individual, Holder said, wouldn�t violate the executive order banning assassinations or criminal statues because such an act would be in �self defense.� In remarks delivered at Northwestern University Law School in Chicago, Holder also said that targeted killings are not �assassinations,� adding that the �use of that loaded term is misplaced� because assassinations are �unlawful killings� while targeted strikes are conducted lawfully.

The bold emphasis is mine. "Due process" now includes being accused, found guilty and sentenced to death by an executive that is judge, jury and executioner and all conducted in the shadows.

Emptywheel:

Hamdi�which Holder invokes for premise that �due process takes into account the realities of combat��specifically says �the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen�s core rights to challenge meaningfully the Government�s case and to be heard by an impartial adjudicator.� Hamdi permits for balancing�for the use of things like hearsay, for example. But it explicitly says that the realities of combat don�t obviate a citizen�s right to an impartial adjudicator.

You know. Like a judge.

Somehow, I've fallen through a portal into John Yoo's America.

Update

Adam Serwer:

don't assume that when Holder says "imminent threat of violent attack," he means that you're actually part of a specific plot threatening American lives. "The Constitution does not require the President to delay action until some theoretical end-stage of planning when the precise time, place, and manner of an attack become clear," Holder said. That would introduce an "unacceptably high risk of failure." When he refers to "failure," Holder presumably means failing to kill the target before the attack or plan for an attack materializies, not the possiblity that the government might accidentally kill an innocent person.

If the standards for when the government can send a deadly flying robot to vaporize you sound a bit subjective, that's because they are. Holder made clear that decisions about which citizens the government can kill are the exclusive province of the executive branch, because only the executive branch possess the "expertise and immediate access to information" to make these life-and-death judgments.

ACLU:

�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. 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.�

Some used to think it was ok to trust a president with that kind of power if he was a Democrat. (I'm not going to quote myself but please, just read the link.)