U.S. kill policy on American terrorists demands debate

When the U.S. government claims the power to target and kill American citizens in the fight against terrorists, it's serious business that demands a serious debate. The nation has yet to have it.

In a speech Monday at the Northwestern University School of Law, Attorney General Eric Holder said the government can lawfully kill an American abroad if it concludes the target is a senior operational leader of al-Qaida or an associated organization which is planning to kill Americans. The threat must be imminent and capture not feasible. He contended the federal courts have no role in reviewing who is targeted for death and why.

That's too much power to allow any president without an informed, public debate of the wisdom of going down that road.

The nature of warfare is changing. Rather than deploying armies to fight nations, war is increasingly waged by intelligence operatives and special forces against stateless enemy organizations. Drone attacks and covert operations, like the one that killed Osama bin Laden, can be much more efficient and effective than sending in troops.

But the administration crossed a momentous line when it put American citizen and al-Qaida operative Anwar al-Awlaki on its kill list in April 2010, and executed him last September in a drone attack in Yemen. It may be a line that needed to be crossed. But a policy authorizing executions of American citizens demands more scrutiny. The public should be privy to documents in which the administration makes the constitutional case its policy on targeted killings.

The attorney general's long-overdue comments broke the official silence of President Barack Obama's administration on its legal justifications for targeting al-Awlaki. But Holder has refused to release a Justice Department memo that reportedly provides that reasoning and the administration's justification for such executions in detail. That's a mistake. He should abandon the court fight to keep the memo secret.

Citizenship shouldn't necessarily immunize an avowed terrorist against targeted lethal force. But there should be some judicial review of the decision to kill. Holder said "the Constitution guarantees due process, not judicial process," arguing that secret deliberations within the executive branch are adequate. In some instances fast-moving events and fleeting opportunities may make prior judicial review impractical. But that wasn't the case with al-Awlaki, who was placed on the kill list 17 months before he was executed.

Al-Awlaki was the operational leader of al-Qaida in the Arabian Peninsula. The American people are safer with him dead. But whether the government should be allowed to kill Americans far from an active battlefield and without court review shouldn't be decided based on the desire to be rid of any one bad actor. Not all cases will be so clear.

This nation has an executive order banning assassinations, a law against Americans murdering Americans abroad and a constitutional prohibition against the government taking a life without due process of law. Whether fighting terrorists justifies a policy that trumps all those restrictions is a decision best made in the glare of public scrutiny.