Can the President kill anyone he chooses, even if it denies an American citizen due process rights?

That seems to be what Attorney General Holder argued in a recent speech, a power he argues is a necessary consequence of the war on terror, and a component of the president's inherent power of commander in chief:

Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of 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 be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

 

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.  

 

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat.

 

Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

This subject straddles 2301 and 2302 since it concerns both the procedural rights that American's have - those that are spelled out in the 4th - 8th Amendments of the Bill of Rights - and the loosely defined military powers of the President. Here is an area where they conflict and the Obama Administration - along with most any other administration I imagine - would argue that his powers trump due process rights.

2302s ought to read the speech in order to hear what the attorney general is saying about the increased efficiency of the executive branch's military and surveillance powers after the considerable reorganization it went through following 9/11.

For detail and critiques read these:

- Holder Defends Executions Without Charges.
- So we should just trust that the president wont assassinate us?
- Reviving the Constitution.

- On targeted killings, Holder strikes out.
- Not so innocent abroad.