On March 5, 2012, speaking on law and national security at Northwestern Law School, U.S. Attorney General Eric Holder justified the use of lethal force under international law and the U.S. Constitution to protect the country from any imminent threat of violent attack. He explained 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 lawful and hence it would not violate the Executive Order banning assassination or criminal statutes.
In this regard, Mr. Holder said U.S. citizenship alone does not make such individuals immune from being targeted although it means that the U.S. government must take into account all relevant constitutional considerations, especially the Fifth Amendment's Due Process Clause, with respect to U.S. citizens. Mr Holder observed that the Supreme Court has clarified that the Due Process Clause requires procedural safeguards that depend on specific circumstances In particular, the Supreme 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.
Mr. Holder gave the principles whereby the U.S. government will use lethal force in a foreign country, targeted against a U.S. citizen as follows:
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances:
First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States;
second, capture is not feasible; and
third, the operation would be conducted in a manner consistent with applicable law of war principles.
Mr. Holder also discussed a defense of the legitimacy of military commissions, as well as the need to keep open the option of civilian criminal trials. For instance, he explained that some U.S. allies refuse to cooperate with the U.S. (furnishing evidence or extraditing suspects) if the U.S. intends to use the cooperation in pursuit of a military commission prosecution.