On Monday, March 5, Attorney General Eric H. Holder Jr. delivered a speech at Northwestern University School of Law. The speech was billed as a major address that would outline the Obama administration’s legal justification for the targeted killing of American citizens. Students clamored to attend.
Afterwards, students were abuzz, debating the merits of the new policy. But many of us, on all sides of the political spectrum, were deeply disappointed by the attorney general’s speech. Indeed, many were shocked, because a policy of this obvious significance demanded a better explanation than the one we were given. It demands an explanation that adheres to established methods of inquiry — methods that our courts and legal institutions rely on to establish and maintain the rule of law and fidelity to the Constitution.
Holder articulated a three-part test for determining the legality of a targeted killing against a U.S. citizen: The government must determine that the citizen poses an imminent threat of violent attack against the United States; that the citizen’s capture is not feasible; and that killing the citizen would be consistent with the laws of war.
However, as Charlie Savage of The New York Times noted, “the speech contained no footnotes or specific legal citations.” No cases were cited by name. No factual differences were offered to distinguish these killings from assassinations. No account was given as to how the administration intends to apply this test to identify a target. Instead, insisting that due process is not the same as judicial process, Holder baldly asserted that the targeted killing of a U.S. citizen without a trial is “entirely lawful” in the right circumstances, whatever those might be.
As students, we are taught to evaluate legal questions in a systematic, thorough inquiry by citing rules and examining and distinguishing legal precedent before weighing the policy benefits and costs involved. This method of inquiry is central to the American common law tradition. Teaching students to engage in this method in a disciplined, robust and creative manner gives Northwestern Law the academic and intellectual credibility that drew such a distinguished guest to speak before us in the first place.
Yet Holder did not adhere to this method. He did not, for example, engage the U.S. Supreme Court’s definition of due process from Hamdi v. Rumsfeld to explain why, as he put it, “Due process and judicial process are not one and the same.” He did not answer the crucial questions: What does it mean for a capture to be “feasible”? When is a sovereign “unwilling or unable” to consent to a violation of its territory? When is a threat “imminent”? Finally, he did not explain the reasoning for the single assertion that would make international laws of war applicable to targeted killings — why it is, legally, that “we are a nation at war.” For Holder and the Obama administration’s pronouncement of law to be legitimate, these are just a few of the questions they must confront.
In addition to failing to use basic legal, moral or policy-based reasoning in the attorney general’s speech, the Obama administration has not released any legal memoranda explaining the policy. To date, we are unable to confront and evaluate the underlying legal rules and reasoning that Holder and the Obama administration claim makes the targeted killing of an American citizen without trial “entirely lawful.” In short, as Holder stood on our auditorium stage, under a banner bearing our school’s name, he failed to employ the kind of reasoning that the rule of law relies on to maintain its legitimacy. Instead, he benefited from the credibility of our institution without engaging in the methods of inquiry that give the institution credibility in the first place.
As students at Northwestern Law and future attorneys, we are united in our faith in the methods that protect the rule of law and uphold the Constitution. We call on our fellow law students, our faculty, all lawyers and the Department of Justice to engage in this critical policy question in a manner consistent with traditional methods of legal inquiry. We believe the integrity of our constitutional system depends on it.
William M. Strom and Alanna Holt are second-year law students at Northwestern University School of Law.