Paul Pillar

Secret Death Sentences

Attorney General Eric Holder's speech aimed at justifying the killing overseas of U.S. citizens believed to be involved in terrorism has received sharp criticism along with some compliments. Many of the criticisms appear justified.

We still have a problem with insufficient clarity and transparency in such operations. The attorney general's statement was a speech bereft of the citations and precedents one would find in a formal legal brief or opinion. We keep hearing about a classified memorandum that the executive branch considers as filling that role, but not even members of Congress have gotten to see it. Mr. Holder stressed in his speech that due process, as mentioned in the Fifth Amendment of the Constitution, is not to be equated with judicial process, and that is true. But we evidently just have to take it on faith from the executive branch that there is such a process underlying the killings that is sufficiently due and thorough to satisfy the constitutional requirement. We never get to see the process or have a chance to fully understand it.

One other problem nags me that I have not seen so far in the criticisms. This whole procedure is supposedly targeted at members of al-Qaeda (or as the attorney general occasionally puts it, “al-Qaeda and associated forces.” The idea seems to be that al-Qaeda is an identifiable, clearly definable hostile entity with which the United States is at war, and thus similar rules and procedures can apply to bumping off members of that group as would apply to killing members of the armed forces of a state at war with the United States. Holder even made reference to the targeted killing—although the term wasn't used back then—of Admiral Yamamoto during World War II in the Pacific. If a U.S citizen had joined the Japanese navy during World II that would have been a clearly defined act resulting in clearly defined membership, and using any means possible to kill such a traitor in the midst of a war would not have been a matter of much controversy.

But al-Qaeda is nothing like the Japanese navy. It is a diffuse, ill-defined movement surrounding a battered core group. It has become all the more diffuse and ill-defined in recent years. The term “al-Qaeda” gets applied variously to anything from what is left of the core group under the command of Ayman al-Zawahiri to any element with a penchant for violent transnational jihadist ideology. Some groups—some of those “associated forces”—have adopted the al-Qaeda brand name, but whether or not a group has adopted that name is not a good indicator of what it is all about and what sort of threat it poses to the United States.

Even if al-Qaeda were not such an ill-defined group, what constitutes being a member of al-Qaeda? Unlike someone joining a foreign state's military force, it does not necessarily mean donning a uniform and being issued an ID card. In many cases “joining” is little more than expressing agreement with certain objectives. Of course, the attorney general laid out other criteria, such as posing an imminent threat to U.S. interests, before someone would come under the procedures he was discussing. But in effect another criterion for determining whether someone comes under those procedures has to do with expressing support for certain goals and ideologies. And that comes perilously close to subjecting a citizen to long-distance administratively determined execution partly because he holds certain beliefs.

This problem is not solely a matter for the executive branch. Congress could and should do more to clarify lines, just as it ought to do more to clarify the still fuzzy law about indefinite detention of U.S. citizens suspected of terrorism. The counterterrorist tool in question should not necessarily be discarded, but given the importance of the other principles and values at stake, we deserve something more by way of clarification and justification than what the attorney general gave us.