1. The premise of Mr. Holder’s address is that “[w]e are a nation at war”. Who “we” might be he did not specify. Perhaps by “we” he referred to himself and his cronies in the Administration. Certainly “we” cannot be equated with WE THE PEOPLE. For Congress has not “declare[d] War” on any foreign nation since World War II, as the Constitution requires. See U.S. Const. art. I, § 8, cl. 11. And Congress could not “declare War” on international “terrorists”, who are “non-state actors” (to use the fashionable jargon)—let alone on “terrorism”, which is a tactic, not a country, a person, or even a thing. Indeed, Mr. Holder himself conceded that “[w]e are at war with a stateless enemy”. That being true, constitutionally speaking the so-called “war on terrorism” makes about as much sense as a “War” as does “the war on crime”, “the war on drugs”, or “the war on obesity” (in none of which, at least so far, has any Administration claimed the power to kill suspected “stateless enem[ies]” out of hand). But, for purposes of argument, one may accept Mr. Holder’s contention, and agree that some rogue Americans are, in fact, “waging war”—or, to use the proper constitutional phrase, “levying War”—against the United States. See U.S. Const. art. III, § 3, cl. 1. As will become apparent, however, this fact does not help Mr. Holder at all.
2. Mr. Holder did make clear, though, that the Administration’s policy of “official homicides” (rather than “official assassinations”, in deference to his sensitivity on the matter of nomenclature) is aimed at Americans in America. At one point in his address, he asserted generally that “[o]ur legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan.” So apparently “the battlefields” are everywhere. At other points, he asserted more specifically that “there are people currently plotting to murder Americans, who reside in distant countries, as well as within our own borders”; that “it is an unfortunate but undeniable fact that some of the threats we face come from a small number of American citizens who have decided to commit violent acts against their own country from abroad; and that “it’s clear that United States citizenship alone does not make such individuals immune from being targeted”. Well, if some of these rogue Americans “reside * * * within our own borders”, and “are currently plotting to murder Americans”, and their “current[ ] plotting” justifies their “being targeted” for “official homicide”, then one must presume that they will be “targeted” right here, where they are, in “the land of free and the home of the brave”, rather than somewhere else where they are not and may never be. Surely the heroes and heroines within the “national-security” bureaucracy will not allow this “plotting” to come to bloody fruition simply because the perpetrators “reside * * * within our own borders”. Indeed, that they do “reside * * * within our own borders” should make their neutralization that much more urgent. After all, as Mr. Holder himself maintained, although “[i]t is preferable to capture suspected terrorists and to bring captured terrorists to justice”, “we must also recognize that there are instances where our government has the clear authority—and * * * the responsibility—to defend the United States through the appropriate and lawful use of lethal force”. And where should this “authority” and “responsibility” be exercised, if not in “the homeland” itself?
3. Mr. Holder did concede that, although “United States citizenship alone does not make such individuals immune from being targeted”, “it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens—even those who are leading efforts to kill innocent Americans”. Nonetheless, having appealed to “all relevant constitutional considerations”, he then focused on only one: “Of these [constitutional considerations], the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law”. Perhaps it is overly pedantic to expect the Attorney General of the United States, while addressing an audience at a major law school, to have recalled that the Fifth Amendment’s Due Process Clause is not limited to “a citizen”, but extends instead to every “person”, alien as well as citizen, without distinction.
If so, then surely it risks asking too much to expect that he would also have noticed the clause in the Fifth Amendment which precedes the Due Process Clause at the very head of the Amendment, and provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”. Although some cases of alleged “terrorism” may “aris[e] in the land or naval forces, or in the Militia”, to simplify analysis they may be set to one side. In all other—purely civilian—cases, “terrorism” and kindred “plot[s] to murder Americans” or “to commit violent acts” are “capital, or otherwise infamous crime[s]” for which “[n]o person shall be held to answer * * * unless on a presentment or indictment of a Grand Jury”. Self-evidently, a “person” who is killed by government agents on the mere suspicion of actually having committed, let alone simply plotting to commit, “a capital, or otherwise infamous crime” is “held to answer for * * * [that] crime” in the most decisive manner imaginable—yet without “a presentment or indictment of a Grand Jury”, let alone the trial by jury to which such “a presentment or indictment” would entitle him. See U.S. Const. art. III, § 2, cl. 3 and amend. VI.
Even more “relevant constitutional considerations”, though, are to be found in the provisions of the Constitution that ban “Bills of Attainder”. U.S. Const. art. I, § 9, cl. 3 and § 10, cl. 1. As I have already touched on this subject in my NewsWithViews commentary “Death Squads”, I shall refer the reader there for the details.
That Mr. Holder said nothing about “a presentment or indictment of a Grand Jury” or about “Bills of Attainder” perhaps betrayed merely a light and careless approach to his duties. For the first rule of analysis where “due process of law” is concerned is that “[w]e must examine the Constitution itself to see whether th[e] process [at issue] be in conflict with any of its provisions”. Murray’s Lessee v. Hoboken Land and Improvement Company, 59 U.S. (18 Howard) 272, 277 (1856) (emphasis supplied). The real reason for Mr. Holder’s apparently slipshod legal scholarship, one suspects, was neither ignorance nor insouciance, but instead art. By focusing solely on the Due Process Clause of the Fifth Amendment, he was able to appeal to the notion that[t]he Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause—including a case involving a U.S. citizen captured in the conflict against al Qaeda—the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.
Unfortunately for Mr. Holder, especially as applied to the case of “official homicide”, the Supreme Court’s theory that “procedural safeguards * * * depend on specific circumstances” is basically nonsense.
Actually, in any case, invocation of “a balancing approach” is gibberish unless one can specify what sort of laboratory scale, calibrated against what standard of measure, is to be employed. Similarly, to talk of “weighing the private interest * * * against the interest the government is trying to protect” is senseless unless one can specify the units of measure to be employed. In the Supreme Court’s system, no one knows what the point of “balance” is, or with what units of measure “interests” are to be “weighed”, until one reads the Court’s opinion, in which the ad hoc result of the “balancing” is announced. There being no fixed point of “balance” and no fixed units of “weight”, in no case is the result either verifiable or falsifiable—and therefore the entire system must be condemned as utterly unscientific. It is not constitutional, either, because rather than being based upon fixed standards and objective methods that yield reproducible results, it is unpredictable, subjective, and arbitrary. And meant to be so. The purpose of “balancing” and “weighing” “interests” is to enable the Justices to make up “due process of law” as they go along.
They even call this rigamarole the “gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require”. Davidson v. City of New Orleans, 96 U.S. 97, 104 (1878). A process that allows for both “inclusion and exclusion”, though, enables the Justices to circumvent constitutional restraints in the guise of enforcing them. Every student of law knows that changes in procedures (“due process”) can have extremely deleterious effects on the substantive rights those procedures are supposed to protect. “A right without a remedy is as if it were not. For every beneficial purpose it may be said not to exist.” United States ex rel. Von Hoffman v. City of Quincy, 71 U.S. (4 Wallace) 535, 554 (1867). Accord, Poindexter v. Greenhow, 114 U.S. 270, 303 (1885); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). The requirement of a “presentment or indictment of a Grand Jury” mandates two particular judicial procedures; and the prohibition of “Bills of Attainder” prohibits a specific legislative procedure. Obviously, this requirement and this prohibition are not subject to “a balancing approach”, to “weighing”, or to “inclusion and exclusion”. The constitutional language “[n]o person shall be held to answer” and “[n]o Bill of Attainder * * * shall be passed” leaves nothing to “balance”, nothing to “weigh”, and certainly nothing to exclude. It is categorical and absolute. Which, one suspects, is why Mr. Holder chose to say absolutely nothing about it.
The short answer to quibbles about “due process”, however, is that, despite Mr. Holder, where “official homicides” are concerned “procedural safeguards [do not] depend on specific circumstances”. When the Fifth Amendment declares that “[n]o person shall * * * be deprived of life * * * without due process of law” it incorporates into “due process of law” every requirement of “due process” to be found elsewhere in the Constitution. So, “due process of law” includes “[n]o person[’s] * * * be[ing] held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”, and no person’s being the subject of a “Bill of Attainder”. One could go further, and point out that the Fourth Amendment provides that “[t]he right of the people”—that is, of all Americans—“to be secure in their persons * * * against unreasonable * * * seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing * * * the persons * * * to be seized”. Self-evidently, if no “persons” may even be “seized” without judicial “Warrants * * * upon probable cause, supported by Oath or affirmation”, how may any “persons” be simply killed out of hand, with no prior judicial involvement at all? Is homicide not the most extreme form of “seizure[ ]” of a “person[ ]” imaginable? Or one could also ask whether an “official homicide” of some individual, with no prior judicial determination of guilt, does not constitute “cruel and unusual punishment”, in violation of the Eighth Amendment. For death is certainly a “punishment”. And that is it imposed on the basis of mere suspicion should make it both “cruel and unusual” as a matter of law, in light of the many times the Constitution mandates some sort of judicial process before any supposed “Crime” may be investigated, charged, or tried, let alone actually punished. See U.S. Const. art. III, § 2, cl. 3; amends. IV, V, and VI. Or one might ask, if “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States”, how can a régime of “official assassinations” without trial, let alone conviction, be allowed to “exist within the United States”? See U.S. Const. amend XIII (emphasis supplied). Those condemned to “slavery [ ]or involuntary servitude”, after all, at least remain alive. But stressing these additional points would merely bring owls to Athens.
4. Mr. Holder contended that
the President is [not] 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. * * * “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.
Of course, this sort of argument begs the question. The truism “not all cows are Jersey cows, but all Jersey cows are cows” does not, by itself, tell us what kind of a cow is standing before us (or what kind of bull, either). So, too, with “due process”. That there may be forms of “due process” which are not “judicial process” does not tell us whether “official homicides” require “judicial process”, some other sort of “due process”, or perhaps no “process” at all.
On the other hand, Mr. Holder was accidentally correct in his statement that “the President is [not] required to get permission from a federal court before” engaging in an “official homicide”—for “federal court[s]” have no authority whatsoever to give permission, or absolution, for an “official homicide”. One can search Article III of the Constitution until his eyes go blind without finding the slightest suggestion that the Supreme Court can authorize “official homicides”. The Constitution does invest “[t]he judicial Power * * * in such inferior Courts as the Congress may from time to time ordain and establish”. U.S. Const. art. III, § 1. And it delegates to Congress the corresponding power “[t]o constitute Tribunals inferior to the supreme Court”. U.S. Const. art. I, § 8, cl. 9. But, in “constitut[ing such] Tribunals” (as in the exercise of all of its other powers), Congress may not disregard the Constitution’s absolute prohibition of “Bills of Attainder” by purporting to delegate a power it does not have to make anyone the subject of an “Attainder”. (Except in one situation: Congress may make “Attainder of Treason” a “Punishment [for] Treason”; but that “Punishment” may be imposed only after a “Person * * * shall be convicted of Treason”. U.S. Const. art. III, § 3, cls. 2 and 1.)
As his key argument, Mr. Holder contended that
an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles. For part two click below.
The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. * * * [T]he 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. * * * Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack[.] * * *
Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force.
(a) In using the term “imminent threat”, Mr. Holder was attempting to bring “official homicides” within the ambit of the privilege of self-defense. In this, he failed. A true “imminent threat” does not provide the victim of an attack with time for “a thorough and careful review” of the situation. If time for any “review”—especially “a thorough and careful” one—is available, the threat is not “imminent”; and a plea of self-defense cannot be sustained. Similarly for “considerations of the relevant window of opportunity to act”. If the threat is “imminent”, the victim cannot, and need not, bother himself with such “considerations”. He must act then and there, immediately, or suffer the consequences of the attack. If he can stop to weigh such “considerations”, a plea of self-defense cannot be sustained. Self-defense, after all, is born of urgent necessity, not lucubration. Most importantly, self-defense never involves a determination of “the likelihood of heading off future disastrous attacks”. Self-defense always arises in the present, aimed at “heading off [a] disastrous attack[ ]” taking place at that very moment. If “future disastrous attacks” are at issue, the matter is one of “preemptive homicide” or “preventive homicide”, not self-defense.
(End of Part 1)