Skip to content
  • News
  • Events
  • Law Library
  • Giving
  • Alumni
  • Quicklinks

    • Academic Calendar
    • bCourses Overview
    • bCourses Link
    • Business Services
    • Schedule of Classes
    • View Evaluations
    • Identity Resources
    • RoloLaw
    • COVID-19 Protocols
    • Event, Catering and Food Policy
    • Emergency Info
    • Resource Hub for Faculty & Staff

    Support

    • Reporting Potential COVID-19 Cases
    • COVID-19 Remote Teaching Resources
    • Computing Support
    • Event Services
    • Faculty Services (Library)
    • Human Resources & Academic Personnel
    • Instructional Technology
    • Phones
    • Room Reservations
    • Resources to Respond to Sexual Harassment
  • Quicklinks

    • Academic Calendar
    • b-Line
    • Berkeley Law Facebook
    • Financial Aid
    • Faculty Profiles
    • Schedule of Classes
    • Teaching Evaluations
    • Final Exam Review Session Schedule
    • Exams
    • Final Exam Schedule
    • CalCentral
    • COVID-19 Protocols
    • Event, Catering and Food Policy
    • Emergency Info
    • Resource Hub for Students

    Student Services

    • Reporting Potential COVID-19 Cases
    • Student Services Office
    • Academic Skills Program
    • Student Organizations
    • Student Journals
    • Commencement
    • Frequently Asked Questions & Rule Clarifications
    • Bookstore
    • Wellness at Berkeley Law
    • Mindfulness at Berkeley Law
    • Registrar
    • University Health Services
    • Resources to Respond to Sexual Harassment
  • Search for People at Berkeley Law

Berkeley Law
    • Academics Home
    • Areas of Study
      • Social Justice and Public Interest
        • Curriculum
          • J.D. Path
          • LL.M. Path
        • Social Justice+Public Interest Community at Berkeley Law
          • Public Interest and Pro Bono Graduation
      • Business and Start-ups
        • Business Law Curriculum
        • Business Law Faculty
      • Law and Technology
        • Student Activities
        • Law and Tech Curriculum
        • Law and Tech Faculty
      • Environmental Law
      • Criminal Justice
      • International and Comparative Law
        • Centers, Clinics, and Programs
        • Faculty
        • Student Activities
      • Constitutional and Regulatory
      • Law and Economics
        • Faculty
        • Prospective Students
        • Visiting Scholars
        • Law and Economics Fellowship
    • J.D. Program
      • First-Year Curriculum
      • Concurrent Degree Programs
      • Combined Degree Programs
      • Berkeley-Harvard Degree Programs
    • LL.M. Programs
      • LL.M. Executive Track
        • LL.M. Executive Track Academic Calendar
        • Engage with Berkeley Law Online Courses
      • LL.M. Traditional Track
        • Current Academic Calendars
      • LL.M. Thesis Track
        • LL.M. Thesis Track Student Profiles
        • Current Academic Calendars
      • Courses
      • Certificates of Specialization
      • Application & Admission
        • Eligibility & Admission Standards
        • Application Instructions
        • Admissions Policies
        • Check Application Status
      • Tuition & Financial Aid
        • Cost of Attendance
        • Scholarships
        • Financial Aid
          • Financial Aid Checklist for LL.M./J.S.D. Students
        • FAQ Financial Aid
      • Professional Development
      • Admitted Students
        • Visas
        • Housing for LL.M. Students
        • Cancellation & Refund Policies
      • Join an Event & Connect with LL.M. Staff
        • Recruiting and Informational Events
        • Visit Us!
        • Contact Us
      • Meet Our Students
      • Meet Our Partners
      • Questions? Start Here
    • Doctoral Programs
      • J.S.D. Program
        • Application & Admissions
          • Eligibility & Admission Standards
          • Application Instructions
          • Check Your Application Status
        • J.S.D. Tuition & Financial Aid
          • Cost of Attendance for JSD
          • Robbins J.S.D. Fellowship
        • J.S.D. Student Profiles
          • Zehra Betul Ayranci
          • Ella Corren
          • Silvia Fregoni
          • George Lambeth Vicent
          • Sylvia Si-Wei Lu
          • Natsuda Rattamanee
          • Youngmin Seo
          • Abdullah Alkayat Alazemi ’21
          • Mehtab Khan ’21
          • Maximilien Zahnd ’21
          • Shao-Man Lee ’20
          • Alvaro Pereira ’20
        • Contact Us
      • Ph.D. Program – Jurisprudence and Social Policy (JSP)
        • Events Calendar »
    • Executive Education
    • Schedule of Classes
      • Two Year Curriculum Plan
    • Current Academic Calendars
      • 2021-2022 Academic Calendar
      • 2022-2023 Academic Calendar
      • Past Academic Calendars
        • 2020-2021 Academic Calendar
        • 2019-2020 Academic Calendar
        • 2018-2019 Academic Calendar
        • 2017-2018 Academic Calendar
        • 2016-2017 Academic Calendar
        • 2015-2016 Academic Calendar
        • 2014-2015 Academic Calendar
        • 2013-2014 Academic Calendar
        • 2012-2013 Academic Calendar
        • 2011-2012 Academic Calendar
        • 2010-2011 Academic Calendar
        • 2009-2010 Academic Calendar
        • 2008-2009 Academic Calendar
    • Registrar
      • Order of the Coif and Dean’s List
      • Academic Rules
        • Supplemental Academic Rules for Traditional and Thesis Track LL.M. Students
        • Academic Honor Code
        • Academic Rules Petition
        • Academic Rule 3.06 – applies to the Class of 2010 and before
        • Credit Hours
      • Registration
      • Transcripts
      • Verification of Attendance
      • Registrar’s Forms
      • Ordering a Diploma »
      • J.D. Academic Guidance
        • 3L Requirements FAQ
        • 3L Degree Worksheet
      • Registrar’s Student FAQ
      • Bar Information
        • State Bar Swearing-In Ceremony Information
    • Admissions Home
    • J.D. Admissions
      • Applying for the J.D. Degree
        • Ready to Apply
        • After You’ve Applied
        • FAQs
      • Entering Class Profile
      • Connect with Admissions
        • Meet Our Team
        • View the Prospectus
        • Webinars
        • Recruiting and Information Events
        • Contact LL.M. Admissions
        • Contact J.S.P. Admissions
      • Meet Our Students
      • Diversity at Berkeley Law
        • Diversity News
      • The Berkeley Experience
        • U.C. Berkeley Campus
        • Berkeley and the Bay Area
      • Concurrent & Combined Degree Programs
      • Faculty Admissions Policy
      • Financial Aid
        • Prospective and Entering Students
          • Entering Student Registration & Financial Aid Information
          • Financial Aid for International J.D. Students
          • Financial Aid for Undocumented J.D. Students
          • Legal Resident Information
        • Types of Aid
          • Scholarships
          • Loans
          • Work-Study
        • How to Apply
          • Financial Aid Checklist & Timeline For Incoming Transfer Students
          • Financial Aid Checklist & Timeline For Entering Students
          • Financial Aid Checklist & Timeline For Continuing Students
        • Fees & Cost of Attendance
          • Cost of Attendance Adjustments
        • PDST-Increase Offset Awards (PIOAs)
        • Forms
        • Loan Repayment Assistance Program (LRAP)
          • LRAP Eligibility Guidelines
          • LRAP Eligibility Calculator
          • How to Apply for LRAP
          • LRAP Application Forms
          • Public Service Loan Forgiveness (PSLF)
          • News & Updates
          • COVID-19 & Student Loans
          • LRAP FAQs
          • LRAP Glossary of Terms
        • Info Sessions & Presentations
        • Financial Literacy
        • Financial Aid – J.D. Concurrent Degree Programs
        • FAQ & Glossary
        • Requesting a Financial Aid Award for a Student
        • About Our Team
      • Outreach Partnerships
      • Admitted Students – First-Year »
      • Admitted Students – Transfer & Visitor Status »
      • For Current Berkeley Law Students
      • Admissions Policies
      • ABA Required Disclosures »
      • Our Role in Dismantling Systemic Racism
    • LL.M. Admissions
    • J.S.D. Admissions
    • Ph.D. (JSP) Admissions
    • Visiting Scholar and Visiting Student Researcher Admissions
    • Faculty & Research Home
    • Faculty Experts by Topic
    • Faculty Profiles
    • Deans Emeritus Lecturers
    • Recent Faculty Scholarship
    • Awards and Honors
    • Faculty in the News
    • Featured Research
    • Centers, Institutes & Initiatives
    • Experiential Home
    • Clinical Program
      • Apply to the Clinics
      • Death Penalty Clinic
        • About the Clinic
          • Faculty and Staff
          • Alumni
        • Clinic News
        • Projects and Cases
          • Death Penalty Clinic Amicus Curiae Briefs
          • Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors
        • Information for Students
        • Resources and Publications
          • Capital Defense Internships and Jobs
        • Donate to the Clinic
      • East Bay Community Law Center
      • Environmental Law Clinic
        • About the Clinic
        • Information for Students
        • Newsletters
        • Clinic News
        • Student Voices
        • Faculty and Staff
        • Alumni
        • Donate to the Clinic
      • International Human Rights Law Clinic
        • About the Clinic
          • Alumni
          • Faculty and Staff
        • Clinic News
        • Projects and Cases
          • Accountability and Transitional Justice
          • Promoting Human Rights in the United States
          • A Rights-Based Approach to Combating Poverty: Economic, Social & Cultural Rights
          • Counter-Terrorism and Human Rights
        • Independent Investigation of the Murder of Berta Cáceres
        • Living with Impunity: Unsolved Murders in Oakland and the Human Rights Impact on Victims’ Family Members
        • A New Border Vision
        • Who Will Be Left to Defend Human Rights? Persecution of Online Expression in the Gulf and Neighboring Countries
        • Resources and Publications by Focal Area
        • Information for Students
          • Student Self-Reflection
        • IHRLC 20th Anniversary
        • Donate to the Clinic
      • New Business Community Law Clinic
        • About the Clinic
        • Information for Students
        • Our Work
        • Services to California’s Central Valley
        • New Businesses
        • Events
        • Apply for Services
        • Donate to the Clinic
        • 2014 Fall Startup Workshop Series
      • Policy Advocacy Clinic
        • About Us
        • People
        • Clinic News
        • Juvenile Fee Abolition in California
          • COVID-19 Action on Juvenile Fees
        • Resources and Publications
        • Information for Students
        • Donate to the Clinic
      • Samuelson Law, Technology & Public Policy Clinic
        • About
          • Faculty and Staff
          • Clinic Alumni
          • Partners
        • Clinic News
        • Our Work
        • Information for Students
      • Clinical Program Annual Report
        • Annual Report Archive
      • The Brian M. Sax Prize for Excellence in Clinical Advocacy
        • Brian M. Sax
        • Recipients
    • Pro Bono Program
      • The Pro Bono Pledge
        • Definition of Pro Bono
      • Log Your Pro Bono Hours
        • Definition of Pro Bono
      • Student-Initiated Legal Services Projects (SLPS)
        • How To Apply
        • Current Student-Initiated Legal Services Projects
          • Animal Law and Advocacy
          • Arts and Innovation Representation
          • Berkeley Abolitionist Lawyering Project
          • Berkeley Immigration Group
          • Berkeley Law Anti-Trafficking Project
          • Berkeley Law and Organizing Collective
          • California Asylum Representation Clinic
          • Clean Energy Leaders In Law
          • Consumer Protection Public Policy Order
          • Contra Costa Reentry Project
          • DA Accountability & Participatory Defense Project
          • Digital Rights Project
          • Disability Rights Project
          • East Bay Dreamers Project
          • Environmental Conservation Outreach
          • Food Justice Project
          • Foster Education Project
          • Free The Land Project
          • Gun Violence Prevention Project
          • Homelessness Service Project
          • International Human Rights Workshop
          • International Refugee Assistance Project
          • La Alianza Workers’ and Tenants’ Rights Clinic
          • Legal Automation Workshop
          • Legal Obstacles Veterans Encounter
          • Name and Gender Change Workshop
          • Native American Legal Assistance Project
          • Palestine Advocacy Legal Assistance Project
          • Police Review Project
          • Political and Election Empowerment Project
          • Post-Conviction Advocacy Project
          • Prisoner Advocacy Network
          • Reentry Advocacy Project
          • Reproductive Justice Project
          • Startup Law Initiative
          • Survivor Advocacy Project
          • Tenants’ Rights Workshop
          • Wage Justice Clinic
          • Workers’ Rights Clinic
          • Workers’ Rights Disability Law Clinic
          • Youth Advocacy Project
        • How to Start a New SLP
        • Inactive Student-Initiated Legal Services Projects
          • AI Legal Workshop
          • Berkeley Immigration Law Clinic
          • Berkeley Students in Support of Arts and Innovation
          • Civil Rights Outreach Project (CROP)
          • Community Restorative Justice Project
          • Juvenile Hall Outreach
          • Karuk-Berkeley Collaborative Legal
          • Local Economies and Entrepreneurship Project
        • SLPS Champions
      • Berkeley Law Alternative Service Trips (BLAST)
        • Current Berkeley Law Alternative Service Trips (BLAST)
          • Atlanta
          • Central Valley
          • Hawaii
          • Mississippi
        • Inactive Berkeley Law Alternative Service Trips
          • Kentucky
          • Los Angeles
          • South Texas
          • Tijuana
      • Call for Necessary Engagement in Community & Timely Response (CNECT)
        • Berkeley Law Afghanistan Project
        • Current & Past CNECT Partners
          • Hub for Equity in Administrative Representation
          • Racial Justice Legal Research Bank Project
        • CNECT News
      • Independent Projects
      • Opportunities for LL.M. Students
      • Supervising Attorneys
      • Pro Bono Spotlights
        • Malak Afaneh ’24
        • KeAndra Hollis ’24
        • Maripau Paz ’24
        • Lucero Cordova ’23
        • Bharti Tyagi ’21
        • Benji Martinez ’23
        • Will Morrow ’23
        • Stephanie Clemente ’23
        • Francesco Arreaga ’21
        • Armbien Sabillo ’21
        • Kelsey Peden ’21
        • Jennifer Sherman ‘22
        • Professor Khiara M. Bridges
        • Professor Kristen Holmquist
      • Awards
      • Law Firm Pro Bono Programs
      • New York Bar Pro Bono Requirement
      • For Public Interest & Pro Bono Providers
    • Professional Skills Program
      • Legal Research, Analysis, and Writing Program
      • Elective Skills Courses
      • Advocacy Competitions Program
        • Tryout Procedures
        • Student Eligibility & How to Contact Us
        • Internal Competitions
          • McBaine Honors Moot Court
          • Halloum Negotiations Competition (Spring)
          • Halloum Business Competition (Fall)
          • Bales Trial Competition
          • Pahlke Internal Trial Competition (PINT)
          • The Pircher, Nichols & Meeks Joint Venture Challenge
        • External Competitions
          • Alternative Dispute Resolution (ADR) Team
          • Moot Court Team
          • Trial Team
        • Writing Competitions
        • 2021 ABA Negotiation Competition
        • Travel Reimbursements
        • Our Supporters
    • Field Placement Program
      • Testimonials
      • Judicial Externships
      • Civil Field Placements
      • Criminal Field Placements
      • Away Field Placements
        • Berkeley Law in The Hague
        • INHR Program
        • UCDC Law Program
      • For Supervisors and Host Organizations
        • BACE: Bay Area Consortium on Externships
      • How to Apply
      • Frequently Asked Questions
    • Startup@BerkeleyLaw
      • Law Students
      • Entrepreneurs
        • Resources
        • How to Start a Startup @ Cal
        • FORM+FUND
          • FORM+FUND Fall 2020 Video Library
          • FORM+FUND Fall 2021 Video Library
          • FORM+FUND Spring 2021 Video Library
        • BerkeleyBase
        • Startup Law Initiative
      • Investors
    • Domestic Violence Law Practicum
      • About the Director
      • How to Apply
      • Companion Seminar
      • Former Students
      • Impact of DVP
      • Domestic Violence Field Placement Internships
      • News
      • Photos
      • Student Writing
    • Veterans Law Practicum
    • Careers Home
    • For J.D. Students
      • Appointments and Drop-in Hours
      • Private Sector Careers
        • Explore Private Sector Careers
        • Find Private Sector Jobs
          • 2022 OCI: EIW & FIP
          • OCI Alternatives
          • SIP – Spring 2022
      • Public Interest Careers
        • Explore Public Interest
        • Find Public Interest Jobs
          • PI/PS Interviewing Resources
          • Using Interview Programs to Land Your 1L Summer Job
          • Post-Graduate Public Interest Fellowships
          • CDO PIPS Videos
        • Finance Your Public Interest Career
          • Summer Funding for PI/PS Internships & Judicial Externships
          • Berkeley Law Bridge and Public Interest Fellowships
      • Public Sector Careers
        • Federal Government Careers
        • State & Local Government Careers (incl. CA)
        • Careers in Policy/Politics
      • Judicial Clerkships
        • Application Instructions and Materials
        • OSCAR Resources
        • Clerkship and Interview Evaluations
        • Other Clerkship Resources
        • Videos of Clerkship Programs
        • State Court Resources
      • Judicial Externships
      • Academic Careers
        • FAQ
        • Further Reading
        • Alumni Contacts
        • Links
        • Webcasts
      • Alternative Careers
    • For LL.M. Students
    • For Employers
      • Berkeley Law Recruiting Policies
      • Employer Resources for Virtual Internship Programs
      • Non Discrimination and Non Harassment Policies
      • Grading Policy
      • Interview Programs
      • Posting Job Listings
      • Reaching Berkeley Law J.D. Students
    • PSJD »
    • For Alumni
      • Enrichment Opportunities for Recent Grads
      • CDO Online Resources
      • Alumni Resource Collection
      • Help the CDO
      • For Recent Graduate Job-Seekers
    • About CDO
      • CDO Staff News
    • Career Resource Library
    • Employment Outcomes
      • Employment Statistics
      • Judicial Clerkship Placement Statistics
      • 2018 Clerkship Yearbook
  • Racial Justice
Home Articles News Op-Eds – ARCHIVAL The Good and Bad in Eric Holder’s Drone Defense

The Good and Bad in Eric Holder’s Drone Defense

  • Share article on Facebook
  • Share article on Twitter
  • Share article on LinkedIn
  • Email article

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.

03/12/2012

News

  • Coronavirus (COVID-19) Information
    • Berkeley Law COVID-19 Protocols
    • Event, Catering and Food Policy
  • Transcript Magazine
    • Transcript Archive
      • Transcript Spring 2021 Online Edition
      • Transcript Fall 2020 Online Edition
      • Transcript Spring 2020 Online Edition
      • Transcript Fall 2019 Online Edition
      • Transcript Spring 2019 Online Edition
      • Transcript Fall 2018 Online Edition
      • Transcript Spring 2018 Online Edition
      • Transcript 2017 Online Edition
      • Transcript 2016 Online Edition
  • Podcasts
  • On Display
  • Media Highlights
  • News Archive
    • 2022 Archive
    • 2021 Archive
    • 2020 Archive
    • 2019 Archive
    • 2018 Archive
    • 2017 Archive
    • 2016 Archive
    • 2015 Archive
    • 2014 Archive
    • 2013 Archive
    • 2012 Archive
    • 2011 Archive
    • 2010 Archive
    • 2009 Archive
    • 2008 Archive
    • 2007 Archive
    • 2006 Archive
    • 2005 Archive
    • News Briefs
    • Alumni Newsletter
  • Trailblazing Women
  • Social Media
  • Communications Office
    • Identity Resources
      • Ordering Printed Supplies
    • Media Release Form
  • Law School Images »
Berkeley Law
  • Twitter
  • Youtube
  • Instagram
  • Flickr
  • Facebook
  • LinkedIn
  • About
  • Getting Here
  • Contact Us
  • Job Openings
  • ABA Required Disclosures
  • Feedback
  • For Employers
  • Accessibility
  • Nondiscrimination
  • Privacy Policy
  • UC Berkeley

© 2022 UC Regents, UC Berkeley School of Law, All Rights Reserved.

Notice – Berkeley Law COVID-19 Protocols