Evaluating Holder's speech on targeted killing
March 5th, 2012
05:00 PM ET

Evaluating Holder's speech on targeted killing

Editor’s Note: Matthew Waxman is Associate Professor at Columbia Law School, and he is also a fellow at the Council on Foreign Relations and member of the Hoover Institution Task Force on National Security and Law.

By Matthew Waxman – Special to CNN

On Monday, Attorney General Eric Holder delivered a long-anticipated address providing the Obama Administration’s legal rationale for targeted killings of certain al Qaeda suspects - even U.S. citizens.  Ever since last fall when the it reportedly killed American-born Anwar al-Awlaki - an al Qaeda terrorist plotter and propagandist - with a drone strike in Yemen, the Obama Administration has faced strong pressure to explain its legal basis for such actions.

Holder’s remarks are unlikely to satisfy either the most vocal civil libertarians or security-hawks, but they reflect this administration’s pragmatic approach toward national security law issues.

Read on Security Clearance Blog: Not 'assassination' to target Americans in terror hunt

Holder’s remarks, which also reasserted the administration’s need for flexible discretion to use both military and civilian courts to prosecute some al Qaeda suspects, is the latest in a series of public speeches from senior Obama Administration legal and counterterrorism officials (including Defense Department General Counsel Jeh Johnson, White House counterterrorism adviser John Brennan, and State Department legal adviser Harold Koh).  A common theme of these presentations is that the United States remains at war with al Qaeda and its allies - a war authorized by Congress in 2001 - but that U.S. war-waging powers such as lethal force, detention, military commissions, and interrogation are bounded by both international and domestic law. Each of these speeches has incrementally provided additional contour to these legal boundaries, which is important to building and sustaining the legitimacy of the counter-terrorism programs - even though the general principles and sparse details are not enough to convince skeptics at home or abroad.

The novel part of Holder’s remarks was the discussion of American constitutional rights and how they constrain targeted killings abroad of U.S. citizen-belligerents (although he never mentions al-Awlaki by name, presumably the speech reflects the legal analysis behind operations against him).

The continuing challenge for the Obama Administration in this string of speeches has been to balance or reconcile several sets of opposing imperatives: Asserting broad and geographically expansive war-fighting powers while assuring critics that they are limited; touting and justifying actions that remain covert and officially unacknowledged; promoting government transparency while protecting sensitive intelligence programs and diplomatic relations.

As the 2012 presidential race heats up, expect to hear President Obama criticized on this set of issues from both ends of the political spectrum.  Some parts of his liberal base remain disappointed by his continuing use of indefinite wartime detention, military commissions, and targeted killing. Some on the right will attack him for imposing tight restrictions on interrogation and sometimes making use of civilian federal prosecutions against al Qaeda leaders and plotters (even though the Bush administration repeatedly and successfully used civilian prosecutions, too).

In practice, the Obama administration’s policies have closely resembled those of the last few years of the George W. Bush administration - after reforms imposed by each of the three branches of government - even if the Obama Administration has pulled back on its predecessor’s most aggressive legal views about executive powers.

Regardless of who wins the presidency in 2012, the counterterrorism policies and practices in the next term will look a lot like they do now.  A second-term Obama administration will continue its approach of flexible pragmatism, having learned that operational and political constraints rule out radical reforms, but having shown that acknowledging and articulating legal limits strengthens counter-terrorism programs by making them less vulnerable to legal and political challenges and reducing friction with our allies.

Any Republican administration will find it difficult to roll back Obama Administration reforms in the other direction, especially those that reflect legal lines drawn by the Justice Department in recent years. It will also find how valuable the option of civilian criminal prosecutions can be.

The views expressed in this article are solely those of Matthew Waxman.

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Topics: Covert Operations • Law • Military

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soundoff (30 Responses)
  1. Travis

    These heinous actions by the Obama Administration need to be outlawed and fast at the U.N. Murder is murder no matter how you slice it! Both Barack Obama and George W. Bush need to be indicted and taken to the I.C.C. The fact that these heinous murders go on day after day makes my blood boil. Then again, if one has the money and the power these like Obama, one can get away with about anything!

    March 5, 2012 at 5:21 pm | Reply
    • Marine5484

      Very well posted, Travis. No matter what Attorney General Eric Holder has to say here, there is no way on God's green earth that anyone can justify cold blooded murder. Back on May 2, last, the Seal Team 6 could just as easily have taken the purported Ussami bin Laden alive instead of shooting him down like a dog the way hey did.

      March 5, 2012 at 7:13 pm | Reply
      • j. von hettlingen

        The "war on terror" and its attributes: targeted killings and Guantanamo etc. will remain one of the dark chapters of the U.S. History.

        March 6, 2012 at 5:04 am |
      • j. von hettlingen

        Indeed the target killing of a terrorist abroad is cheaper than his rendition and detention somewhere outside the U.S. For Eric holder any threat posed by extremists justified the use of force, which would only be used if 1) a target was a senior figure in al-Qaeda or an affiliated organisation, 2) it was not possible to capture them. He said efforts were taken to avoid hurting others. That's not true, in the tribal areas of Pakistan there had been casualties in the past when a target was hit by a drone and jet strike. Do – sometimes innocent – civilians have to die, just because they happen to be in the same company as the targeted?

        March 7, 2012 at 4:48 am |
  2. rightospeak

    I see in comments above that soundoff has 4 responses-I can only see a comment by Travis made at 5:21 PM. Where are the other comments including mine ? Censorship ? If it happened once , I would overlook it. What I see is a deliberate manipulation of comments to obtain a desired effect. I am going to check again and see if my politically incorrect comment came back. I never use vulgarity or unrelated topics that I see other people write and get away with it. With my unpopular comments on war with Iran, which I think would be insanity , I was banned from Reuters for only a few such comments and from MSNBC for suggesting an alternate news network so I am suspitious of what is going on here.

    March 5, 2012 at 7:21 pm | Reply
    • George Patton

      That makes two of us, rightospeak. I too have had many of my comments blocked on CNN "This Just In" for lack of political correctness and the fact that a lot of right-wing nutjobs got upset at reading my posts. The problem is that these ignorant right-wing fanatics can't stand to see people voice opinions here other than their own!!!

      March 6, 2012 at 10:10 am | Reply
  3. rightospeak

    Again in soundoff I see 7 comments , I can read only 3 . Where are the other 4 and my original one ????

    March 5, 2012 at 7:48 pm | Reply
    • Citizen 0

      And 488 that were just there

      March 5, 2012 at 10:17 pm | Reply
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  4. Citizen 0

    And the way you re worded the main headline..... And Removed American Citizens!
    Hello? WOW!

    March 5, 2012 at 10:20 pm | Reply
  5. Citizen 0

    Well I know someone said something about the Jew's, I guess that is enough to erase all 488 posts..... :/

    March 5, 2012 at 10:28 pm | Reply
  6. matt a

    I'm going to assume that Al-Awlaki could have turned himself into authorities, rather than continue plotting against the West and the Yemenese government.

    March 5, 2012 at 11:58 pm | Reply
  7. ...

    If Holder was a conservative Republican the liberal media morons would be all over him for killing Americans without due process.

    CNN: They report with a liberal slant and you decide not to watch.

    Ashleigh Banfield? Are they serious?

    March 6, 2012 at 7:07 am | Reply
  8. I'm surrounded by morons

    I cannot believe that people have a problem with killing a man that would love to strap a bomb to a down syndrome child and send them into a market to kill hundreds of innocent civilians. We are fighting an enemy that doesn't play by the rules and would gladly slaughter you and your children if they had the chance. The only reason that terrorist attacks have not continued in the U.S. post 9/11 is because, as George Orwell said,"We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.”Concerning those that cry foul for the violence visited on these people on our behalf he also said this..."Those who ‘abjure’ violence can only do so because others are committing violence on their behalf." I applaud Mr.Holder and his stance of this piece of filth...mark my words the day another terrorist attack occurs in this country all of the detractors too this policy will cry for blood in the streets.

    March 6, 2012 at 8:35 am | Reply
    • Mohammad A Dar

      Question to be asked is, way a man is ready to sacrifice his life? Crazy? no, it is hinduism, criminality of western hindus, criminals in criminal Judaism, self center ism in opposition to truth absolute forcing him to counter act in hinduism, terrorism in kind. hinduism, terrorism of hindus, criminals is cause of mayhem, not as you hind, lie in your soul, desire.

      March 6, 2012 at 9:53 pm | Reply
  9. Joe

    Eric Holder is a traitor.

    March 6, 2012 at 2:06 pm | Reply
  10. fernace

    I can't see the difference between capturing al-Qaeda operatives "dead or alive" & a criminal on the FBI Top 10 list! I'm a liberal in most matters, but not when it comes to protecting our country & citizens from terrorist threat! If you are an American who has embraced al-Qaeda rhetoric & is actively recruiting, assasinating & suicide bombing private citizens in various nations, then you will be targeted & rightly so! Obamas administration & leadership has succeded in the war on terror in 3 1/2years, in ways the Bush administration couldn't in 8 years & 2 useless wars! The only reason this is a problem now, is because the success belongs to a Democratic president! Suddenly we've shot & killed "poor" binLaden like a "dog"!? Have you people completely forgotten the 3000 innocents he murdered, the complete destuction of a large part of NYC!? The only thing I disagree w/ is Guantanamo! The detainees need access to due process, which has not been forthcoming! Otherwise, we're making progress in this unusual war!!

    March 6, 2012 at 11:49 pm | Reply
    • Sanity

      More meaningless right-wing bla-bla-bla! Like Travis said above, murder is murder no matter what! If we are the most hated country in the world then let's put the blame squarely where it belongs, in the State Department and the White House! We need a sane foreign policy instead of the currently insane one we now have!

      March 7, 2012 at 12:44 am | Reply
  11. African Humanitarian

    What at stake here is how to differentiate by state terrorism and non-state actors'. Each claim to do the right thing. The common thread between the two is extra-judicial killing which is wrong irrespective of either party's expressed motives.

    March 12, 2012 at 7:24 am | Reply
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