In Targeted Killing Speech, Holder Mischaracterizes Debate Over Judicial Review
In delivered at the Northwestern University School of Law , Attorney General Eric Holder provided the Obama Administration’s most detailed public description yet of the legal authority under which it believes it can carry out targeted killings, including of U.S. citizens abroad. Unfortunately, the remarks still amounted to a broad defense of the government’s claimed expansive authority to conduct targeted killings far from a battlefield, without judicial review of its legal justifications or evidence, either before or after a killing. The remarks also mischaracterized the debate over the need for judicial review of targeted killing decisions
Echoing statements made by Defense Department general counsel Jeh Johnson last month, Holder claimed that “some have argued that the President is required to get permission from a federal court before taking action against a United States citizen” (our emphasis), and argued that courts should not get involved in the “real-time decisions” to deploy lethal force. But Holder is constructing a straw man argument here. We are not aware of anyone who has argued that judicial review before a targeted killing is always required, or that courts should exercise real-time oversight over lethal operations.
Rather, in a lawsuit we filed with the Center for Constitutional Rights in 2010 on behalf of the father of Anwar al-Awlaki (who was placed on a government kill list in 2009 and died in a joint CIA/military drone strike in fall 2011), we asked the court to set standards describing when the government could constitutionally use lethal force against a U.S. citizen away from an active battlefield. We also asked the court to order the government to reveal the criteria it used to place al-Awlaki on so-called “kill lists.” And we made clear to the court that we were not asking it to intervene in real-time decision-making by the Executive Branch. The court dismissed our lawsuit on the grounds that it raised “political questions,” and held that the judiciary had no role to play in deciding the legal criteria pursuant to which the executive branch could take the life of one of its own citizens.
As Holder’s speech demonstrates, though, judicial oversight is critically important given the breathtaking authority the government has claimed. Holder acknowledged that all U.S. citizens, including those accused of being terrorists, have a right to due process under the Constitution, but he argued that the Executive Branch, alone, should determine whether the due process requirement is satisfied when the government claims law of war or self-defense authority to kill. In a system of , that simply cannot be the case. Courts must have a role in determining whether the government’s authority to kill its own citizens is legal and whether a decision to kill complies with the Constitution. Otherwise, the government can wield the power to take life with impunity. We should not trust any president – whether this one or the next – to make such momentous decisions fully insulated from judicial review. As the , “a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.”
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
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Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
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VirginiaDec 2024
National Security
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Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.