The Good and Bad in Eric Holder's Drone Defense
By John Yoo, The Wall Street Journal
Election-year conversions make for strange bedfellows. Last week, the Obama administration publicly defended drone strikes on terrorists, including Americans. In a law school speech, Attorney General Eric Holder claimed that his terrorism strategy has achieved success while remaining true to the Constitution.
Mr. Holder embraced the legal theories of the Bush administration. "We are a nation at war," he declared. "And, in this war, we face a nimble and determined enemy that cannot be underestimated." The government "has the clear authority—and, I would argue, the responsibility—to defend the United States through the appropriate and lawful use of lethal force." Killing the enemy is "not limited to the battlefields in Afghanistan," includes the targeting of individual leaders, includes American citizens, and does not need judicial approval.
Mr. Holder deserves credit for standing up for a vigorous war against al Qaeda that combines actionable intelligence with immediate special forces or drone attacks. And like it or not, he accepts that the Constitution designed the president alone to act with the "decision, activity, secrecy, and dispatch" (in the words of Federalist 70) to take pre-emptive action.
"Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments," Mr. Holder observed, "all of which depend on expertise and immediate access to information that only the executive branch may possess in real time."
George W. Bush or Dick Cheney, however, should not hold their breath for an apology from the administration and party that demonized these same security policies on the campaign trail. Nowhere does Mr. Holder reject the antiwar left's conjured claims of constitutional violations and distortions of facts about Guantanamo Bay or the Afghanistan and Iraq wars. Nor does he credit the Bush administration for laying the foundations for the amazing quick-strike capability that has provided Mr. Obama with his only victories in the war on terror.
Mr. Holder devoted much of his speech praising the involvement of civilian law enforcement in the war. He defended President Obama's waiver of a law recently passed by Congress that the military hold and try all alien terrorists. "Those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion," Mr. Holder says. "They are simply wrong." Yet he also agrees that if the administration does not have enough evidence for a federal court, it can try terrorists in military courts or hold them without any trial.
Far from ending debate, Mr. Holder's declaration reveals everything wrong with President Obama's policies. Civilian trials may imprison a single terrorist, but they remain historical exercises that lay blame after a crime. They cannot prevent an attack before it happens. With a suspect's rights to remain silent and to a lawyer, and the years for investigation and trial, al Qaeda operatives have every opportunity to delay the intelligence necessary to take pre-emptive action.
Worse yet, moving the courts to the front lines interferes with our ability to fight directly and effectively. Federal judges will decide whether to admit evidence or whether a terrorist was properly detained, which will force changes to operations on the ground. Soldiers worried about trials will have to collect evidence and gather witness statements on the battlefield, perhaps during combat. During trial, terrorists will invoke their constitutional right to all relevant government information, which will force prosecutors to risk intelligence sources and methods on al Qaeda. Intelligence revealed at trial can swiftly harm ongoing operations in the field.
Mr. Holder revealed his mistaken approach in his toughest lines in the speech. He properly denied that drone attacks amount to assassination, and he correctly noted that Americans who join al Qaeda do not enjoy immunity from targeting or a right to judicial review. "Due process takes into account the realities of combat," Mr. Holder observed. "The Constitution guarantees due process, not judicial process." But he made a fundamental mistake by conceding that terrorists on the battlefield have due process rights at all. Neither the Constitution, judicial precedent, nor historical practice has found that enemies have constitutional rights.
It does not matter whether they are citizens. During the Civil War, every member of the Confederacy remained a citizen—the Union did not provide constitutional due process before, during or after combat. And Mr. Holder cannot claim that due process applies only in the special circumstance of Anwar al-Awlaki, the American mullah who led al Qaeda in Yemen. Due process, if it exists, extends not just to citizens, but also, in the Constitution's words, to any "person." If President Obama believes due process applies to Americans in al Qaeda, it applies to everyone in al Qaeda.
Extending due process would hamstring our armed forces and intelligence in combat. A soldier or intelligence agent would have only vague constitutional standards to guide him under the pressure of split-second decisions. If due process applies, the enemy or their survivors could launch a bevy of lawsuits for damages after a missile strike or snatch-and-grab operation. Due process does and should regulate law enforcement within U.S. borders, but it cannot work as a principle for combat. Enemy combatants only receive rights under the international laws of war, which grant minimal protections to terrorists, or those the U.S. grants out of its good graces.
By reverting to his view that the civilian system should lead the war on terror, Mr. Holder not only concedes unprecedented rights to terrorists. He also manages to distort American law by suggesting that the administration can target American citizens walking down Madison Avenue. That's quite a twofer. 3/12/2012