The killing of an American-born al-Qaida leader by a drone strike in Yemen last year raised troubling questions about whether the government can legally target U.S. citizens abroad against whom it has presented no evidence and who have never been charged with a crime. This week, Attorney General Eric H. Holder appeared before Congress to assure members that such targeted killings are lawful, but it can't be said his arguments were entirely convincing.
Mr. Holder claimed the Constitution gives the president authority to strike suspected terrorists anywhere in the world — including U.S. citizens — if he believes they represent an "imminent threat" to the nation's security. The determining factors, he added, were what he called the "window of opportunity to act," the possible harm to civilians of not acting, and "the likelihood of heading off future disastrous attacks against the United States."
However, Mr. Holder's argument relies on a rather expansive definition of "imminent threat." Under his interpretation, U.S. officials would not have to know the "precise time, place and manner of an attack" but merely that some kind of operation was in the works, even if they had no idea what it was. Nor would they have to get a court's permission before acting.
Given that premise, Mr. Holder's claim that people targeted by the policy would still enjoy their right to "due process" of the law becomes even more elastic. The executive branch's review of all the facts of a case would be considered the equivalent of a "judicial process" and carry the weight of law.
To us, that sound like another way of saying that the president can assume the role of judge, jury and executioner. And since the proceedings would all take place in secrecy, the public would have no way of judging either the facts of the case or the appropriateness of the action the government took.
That's hardly an arrangement likely to leave Americans "assured that actions taken in their defense are consistent with their values and their laws," as Mr. Holder put it.
The most obvious danger of this kind of reasoning is that it concentrates too much power in the hands of the executive, while opening the door to abuses. Using the administration's rationale, anyone could be secretly declared a terrorist suspect and targeted for death by drone strike, and not only would no one know about it but the person targeted would have no opportunity to challenge the action or offer a defense.
Nor does Mr. Holder's description of the process seem to put any limits on where such targeted killings can take place. Since the war on terror is a global struggle, terrorists could be targeted anywhere, including within the United States itself. Are we really ready to allow the president to authorize missile strikes on suspected terrorists hiding out in rural Montana or West Virginia?
In the aftermath of the Sept. 11 attacks, the public generally has been willing to give the government the benefit of the doubt in its effort to hunt down suspected terrorists and bring them to justice. But we were never comfortable with the blank check the Bush administration wrote itself regarding the government's legal authority to prosecute the war on terror.
The Obama administration has escalated the pace of drone strikes since taking office and made it a central element of its national security strategy. But the more expansive view of the legal underpinnings of that policy, epitomized by the targeted killing of terrorist suspects abroad, has never been tested in the courts, and it should be.