MANHATTAN (CN) – As U.S. Attorney General Eric Holder delivered a speech Monday in Chicago, defending targeted killing of terrorism suspects, his assistant filed a brief in Manhattan Federal Court denying the existence of a “targeted killing program.”
Both Holder and his assistant stayed on message when it came to avoiding direct reference to predator drone strikes on U.S. citizens who have not been convicted of a crime.
One such strike, on Sept. 30, 2011, killed Anwar al-Awlaki, an al-Qaida propagandist, who was born in New Mexico.
A U.S. drone reportedly bombed his 16-year-old son, Abdulrahman al-Awlaki, weeks later.
The American Civil Liberties Union sued the government in February, in a Freedom of Information Act complaint, seeking to unearth the legal memo used to justify the drone strikes.
The government denied knowing of the existence of that memo on Monday, in a 9-page brief, despite widespread reports that officials have leaked portions of the memo to the press.
In its answer to the ACLU complaint, government attorneys criticized the phrases “targeted killing program,” “kill lists” and “standards under which … Americans may be put to death” as “vague, ambiguous and argumentative.”
Lawyers for the Department of Justice, the Department of Defense and the CIA prefer the term “lethal operations,” according to the brief.
In Chicago, in a carefully worded speech at Northwestern University, Holder acknowledged that public debate about “lethal force” has not always observed these boundaries.
“Some have called such operations ‘assassinations,'” Holder said. “They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here … the U.S. government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful – and therefore would not violate the Executive Order banning assassination or criminal statutes.” (Ellipsis added.)
Holder did not say the words “drone” or “unmanned aircraft” during his speech.
He said the name al-Awlaki once, when describing in the case of convicted Christmas Day bomber Umar Farouk Abdulmatallab, who told the FBI that al-Awlaki instructed him to wait until his airplane was over U.S. soil before detonating his bomb.
Though Abdulmatallab was convicted in a federal court, Holder insisted that other terrorism suspects from the U.S. do not need their day in court.
“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces,” Holder said. “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”
The ACLU blasted that rationale in a statement.
“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 ACLU National Security Project. “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.”
Also Monday, Assistant Attorney General Elizabeth Shapiro submitted the brief that denied knowing whether a U.S. predator drone had killed al-Awlaki, though it admitted “that DOD has carried out lethal operations, including against foreign nationals, using drones and other means.”
That irony was not lost on the ACLU.
“If the attorney general can discuss the targeted killing program at a law school, then the administration can surely release the legal memos it uses to justify its claimed killing authority, and also defend its legal justifications in court,” Shamsi said in the statement. “The targeted killing program raises profound legal and moral questions that should be subjected to public debate, and constitutional questions that should be considered by the judiciary.”