Holder Talks War Powers

Attorney General Eric Holder earlier this week outlined the administration's legal case for surveillance and intelligence-gathering, trials, and targeted killings to an audience at Northwestern University. Here's the transcript.

In all, Holder's message was that the government approached these decisions with balance and care, making efforts to ensure that its actions comport with U.S. law and international law, and that its efforts are transparent and checked by the other branches, even if only minimally. He also emphasized the government's inter-agency coordination on these and other, related measures. But at the same time, Holder didn't back down from defining sweeping government authority in these areas.

And in the end, a good part of the government's case, especially with regard to targeted killings, amounts to this: Trust us.

As to surveillance and intelligence-gathering, Holder pointed to the administration's on-going efforts under section 702 of the FISA, which authorizes the AG or the DNI to authorize annually, through the FISA court, collection directed at identified categories of foreign intelligence targets without a warrant. Holder said that the executive branch has three checks on this power--an internal check within the executive branch, reporting to Congress and the requirement for reauthorization by Congress, and the FISA court.

As to trying alleged terrorists, Holder made a strong case for executive discretion to try alleged terrorists in a regular Article III court or a military tribunal. How to decide which?

• "First of all, commissions only have jurisdiction to prosecute individuals who are part of al Qaeda, have engaged in hostilities against the United States or its coalition partners, or who have purposefully and materially supported such hostilities."
• "Second, our civilian courts cover a much broader set of offenses than the military commissions, which can only prosecute specified offenses, including violations of the laws of war and other offenses traditionally triable by military commission."
• "Third, there is the issue of international cooperation." Without it, military commissions are tougher.

As to targeted killings of enemies, including American citizen enemies, Holder's speech didn't really have any surprises. He said that a combination of the AUMF and Article II authorities, plus the exectuive's inherent power to protect the nation and self-defense, gave the President power to engage in targeted killings with minimal, and apparently all internal, due process. Holder did say that the administration would respect the counter-veiling values in the constituiton (like due process) and international law. And he elaborated on what we've seen with regard to international law:

The principle of necessity requires that targets have definite military value. The principle of distinction requires that only lawful targets--such as combatants, civilians directly participating in hostilities, and military objectives--may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

SDS