(The Blaze/AP) Attorney General Eric Holder broke the administration's silence on the killing of American-born Anwar al-Awlaki during a speech at Northwestern University Monday, outlining a "three-part test" for determining when a targeted killing against a U.S. citizen is legal.
First, he said the government must determine that the citizen poses an imminent threat of violent attack against the U.S. Second, the individual's capture must not be feasible. Third, the killing must be consistent with laws of war.
However, the Obama administration has refused to release the Justice Department's official legal opinion on al-Awlaki's killing under the Freedom of Information Act, and is in court opposing efforts to have it made public.
Responding to criticism from civil libertarians, Holder flatly rejected the suggestion that the Constitution's due process protections require the president to get permission from a federal court before taking lethal action.
"The unfortunate reality is that our nation will likely continue to face terrorist threats that at times originate with our own citizens," he said. "When such individuals take up arms against this country and join al-Qaida in plotting attacks designed to kill their fellow Americans, there may be only one realistic and appropriate response. We must take steps to stop them in full accordance with the Constitution. In this hour of danger, we simply cannot afford to wait until deadly plans are carried out — and we will not."
Al-Awlaki was a radical cleric who was born in New Mexico, and once preached at an Islamic center in Falls Church, Virginia. His sermons are posted throughout Internet, and his name has been associated with several attempted terrorist attacks. The Nigerian man who tried to blow up an international flight on Christmas 2009 told FBI agents that his mission was approved after a three-day visit with al-Awlaki.
power over life and death. "Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact...Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power."
Weighing in during an interview with Fox News' Shepard Smith, Judge Napolitano said, “No president since Abraham Lincoln has claimed the power to kill another American, and even Lincoln said he was doing it in a wartime environment when people were shooting at each other and the shooting back was in self-defense.”
He continued to say that President Obama is taking the position that he can be judge, jury and executioner without a jury, without a charge, without any of the basic requirements of due process.
Napolitano said Holder’s speech won’t really mean anything because it’s not a legal document, but stressed that what President Obama and Attorney General Holder are doing is not following the Constitution.
Napolitano said if Holder says what he’s planning to say and it is “accepted uncritically by Americans, then we’re doomed. Our freedoms are gone, and the president is no longer president, he’s a king.”