President may order killing of American terrorists, Holder says

The president has legal authority to target and kill American citizens working with Al Qaeda and its allies overseas, according to Atty. Gen. Eric H. Holder Jr., who declared that when such people pose a threat to the country and cannot be captured, “we must take steps to stop them.”

Speaking to an audience at Northwestern University Law School, Holder gave the most complete explanation to date of the Obama administration’s legal rationale for killing people such as American-born Anwar Awlaki, who was targeted in a U.S. airstrike in Yemen last year.

Such killings can be ordered “in full accordance with the Constitution,” but it requires “at least” an imminent threat in a situation where capture is not feasible, and when the strike is “conducted in a manner consistent” with the rules of war, Holder said.

“In this hour of danger,” Holder said, “we simply cannot afford to wait until deadly plans are carried out. And we will not.”

Holder spoke as the top legal representative of a president who came to the White House pledging to try terrorist suspects in federal courthouses in the U.S. but who has accepted a broad view of the executive branch’s power to target and kill those — including American citizens — they believe threaten the country from abroad.

The administration came under considerable pressure after the slaying of Awlaki to explain how targeting and killing him without a trial squared with the oft-repeated stance from Holder and the White House that terrorism suspects should be brought to justice in federal courts. Awlaki, born in New Mexico, was an American citizen.

The speech, delivered to an audience of 800 law school professors and students, was the administration’s response to those demands for an explanation. Holder said the right to order a targeted killing has two legal bases. One is the law passed by Congress after the Sept. 11, 2001, attacks that authorized the president to use all necessary and appropriate force against the perpetrators and those who helped them. The other is the president’s power “to protect the nation from any imminent threat of violent attack.”

That authority is “not limited to the battlefields in Afghanistan,” Holder said, adding that “we are at war with a stateless enemy, prone to shifting operations from country to country.”

For a targeted killing to be carried out, three conditions must be met, he said.

First, the government has to determine that the individual being targeted “poses an imminent threat of violent attack against the U.S.” That evaluation would consider the “relevant window of opportunity to act,” the possible harm to civilians and the likelihood of heading off future attacks.

Second, “capture is not feasible.”

Third, the operation has to be conducted in a manner consistent with four fundamental rules of war: The target must have military value; the target must be lawful, such as combatants or civilians engaged in hostilities; collateral damage must not be excessive; and the weapons chosen must not “inflict unnecessary suffering.”

Critics have argued that such killings are illegal because, in part, the president needs to show a federal court that the targeted individual poses a threat.

“The administration is asserting the authority to kill any American whom the president declares to be an enemy of the state,” said Jameel Jaffer, a national security attorney with the ACLU. “That’s a breathtaking assertion.”

But Holder countered that those determinations by the executive branch do not require any court oversight because they “depend on expertise and immediate access to information that only the executive branch may possess in real time.”

The Constitution “does not require judicial approval before the president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war — even if that individual happens to be a U.S. citizen,” he said.

Several international law experts criticized Holder’s comments as not offering enough detail to justify the administration’s legal case. Many have called for releasing the White House legal opinion that authorized the strike on Awlaki.

Eugene Fidell, who teaches military law at Yale University, said that while “the executive branch can stand its ground on this, politically it’s untenable” not to give a better explanation for targeting and killing Americans and not releasing an Office of Legal Counsel opinion authorizing the use of lethal force.

“Capitol Hill won’t stand for this, they will want a better explanation,” Fidell said. “And so will the public.”

Matthew Waxman, a professor at Columbia Law School and a former Pentagon and State Department official, said the Obama administration “has tried to walk some difficult lines.” He said Holder was “asserting broad and geographically expansive war-fighting powers while assuring critics that they are limited, justifying actions that remain covert and officially unacknowledged, and promoting government transparency while protecting sensitive intelligence programs and diplomatic relations.”

Obama in the 2008 campaign pledged to close the military prison at the U.S. naval base at Guantanamo Bay, Cuba, and he and Holder have repeatedly insisted that suspected terrorists should be tried in federal civilian courts rather than military tribunals. But after intense pressure from Republicans and some key Democrats, they backed off on shutting Guantanamo Bay and their desire to try five alleged top Sept. 11 plotters in New York.

Since the attack that targeted Awlaki and also killed a second American citizen, Samir Khan, critics have cast the administration as two-faced in its policy in terrorism cases. The government has asserted that Awlaki was personally involved in operations such as the attempt to bomb a civilian airliner over Detroit on Christmas Day 2009, though it has not fully disclosed its evidence for that claim. (Another American, Awlaki’s 16-year-old son, Abdul Rahman, was also killed in a separate drone strike in Yemen, though U.S. officials said privately he was not specifically targeted.)

Holder did not specifically refer to those slayings. Nor did he discuss or even acknowledge the existence of the Justice Department’s Office of Legal Counsel document giving legal justification for lethal use of force. Several organizations have filed suit to make it public.

Holder did not take questions from reporters after his remarks, and though he originally was going to answer questions from the law school audience, on Monday morning he abruptly canceled that plan.

The 40-year-old Awlaki, a radical cleric, was a major propagandist for Al Qaeda in the Arabian Peninsula. He also was linked to Army Maj. Nidal Malik Hasan, who is being court-martialed in the 2009 rampage that killed 13 people at Ft. Hood, Texas, and Umar Farouk Abdulmutallab, a Nigerian sentenced in federal court in Detroit last month to life in prison without parole for trying to ignite the bomb on the jetliner on Christmas Day 2009.

The government has alleged that Awlaki gave operational support to Abdulmutallab, and Holder on Monday strongly suggested that someone like him meets the three criteria for an attack with lethal force.

richard.serrano@latimes.com

agrimm@tribune.com

Serrano reported from Washington and Grimm from Chicago. Times staff writer David G. Savage in Washington contributed to this report.