Eric Holder’s speech was designed to lay out the administration’s legal argument for targeted killings, in particular those carried out against U.S. citizens. If that was the goal, I think his speech did it reasonably well. I think some of the criticism is overwrought; a speech is neither a law review article nor a judicial opinion. It’s short on details and legal citations but the basic ideas are there. It’s more like a law school exam answer. Though I suppose Holder and the DOJ had months to get this speech right; I only give my students three hours.
Here are the issues that struck me:
First, Holder emphasized imminence quite a bit but didn’t explain the source of the imminence requirement. He introduced the requirement by saying that “the Constitution empowers the President to protect the nation from any imminent threat of violent attack” and later “lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not unlawful – and therefore would not violate the Executive Order banning assassination or criminal statutes.”
This suggests that Holder was not talking about the imminence requirement for (jus ad bellum) use of force under international law, but rather was talking about domestic U.S. law. The first reference appears to be a gloss on the Article II commander-in-chief power, while the second reference appears to refer to defense of others under domestic criminal law.
But the big question is whether the imminence requirement applies to all TKs or only to those involving U.S. citizens. I would assume the latter, since that’s mostly what the speech is about, but I have to admit that the scope of the analysis is not very clear. Also, there is no jus in bello imminence requirement under standard Law of War targeting principles.
Second, Holder’s version of the imminence requirement isn’t really imminence at all. Holder says that the U.S. analysis takes into account “the relevant window of opportunity to act” – i.e. that the government will not wait until it is too late to stop the threat from being realized.
But this is best described as “immediate necessity,” not imminence. Here’s the difference. Imminence describes the temporal location of the threatened attack – it is about to happen soon. In contrast, “immediate necessity” is about the temporal location of the defensive force – we have to do it now because this is our last best chance to stop the attack.
In most cases, these two analyses will be describing the same time period. But not always. It’s at least possible to envision a future, non-imminent attack but the only way to stop it is to act now. That’s one reason why the Model Penal Code dropped the imminence requirement for self-defense and replaced it with the requirement that the defensive force be “immediately necessary” to avert the threat. However, this is a contested move in criminal law theory, and it is even more contested in international law, as George Fletcher and I discussed in Defending Humanity.
Third, even assuming that Holder did mean imminence (as opposed to immediate necessity), his version of imminence is rather expansive. It includes not just attacks that are about to be launched but also attacks that are in the planning stages. In fact, the attack-planning does not have to be that far along either, because “the 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.” So even the beginning of the planning stage could constitute an imminent attack according to Holder.
So what would constitute a non-imminent attack? I’m not exactly sure. Maybe a hypothetical attack?
The other major issue is due process vs. legal process, but I’ll have to leave that for Part II of my analysis.