March 6, 2012 – 10:58 p.m.

Reaction Muted on Policy Toward U.S. Citizens With Terrorism Ties

The Obama administration’s legal rationale for killing U.S. citizens connected to terrorist organizations when it is considered impossible to bring them to trial has drawn a noticeably low-key reaction in the Senate.

Attorney General Eric H. Holder Jr. is a frequent target of Republican criticism, but the most hearty endorsement he received after outlining the legal basis for the administration’s policy on the highly sensitive issue came from Republican Sen. Lindsey Graham of South Carolina, who on Tuesday pronounced the administration’s case “sound and solid.”

Several Democrats said they were not fully satisfied, while other senators said they had not studied Holder’s arguments closely enough to form an opinion.

The issue dates to the September killing of U.S.-born Yemeni cleric Anwar al-Awlaki — allegedly a key figure in al Qaeda in the Arabian Peninsula — who was widely reported to be the victim of a U.S. drone strike.

Lawmakers asked the administration to justify its action. Holder offered a detailed explanation, without referring to Awlaki’s killing, in a March 5 speech at Northwestern University.

“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,” he said. “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.”

Graham, a former military prosecutor, said the key factor is establishing procedures for handling such cases. “The president has a process to determine that that I support, that’s classified in part, open in part,” he said. “I think it’s the appropriate mechanism to make that decision by our commander in chief. Even though I want him to be beat, I think he deserves that power as much as the next president.”

The alternative, Graham said, would be to turn over to federal courts the authority to determine how to use war powers. Graham said he supports “due process, but due process consistent with being at war.”

The loudest critic was Ron Wyden, an Oregon Democrat who serves on the Intelligence panel. He said Holder’s speech left some questions unanswered.

“For example, the government should explain exactly how much evidence the president needs in order to decide that a particular American is part of a terrorist group,” Wyden said in a March 5 statement. “Based on what I’ve heard so far, I can’t tell whether or not the Justice Department’s legal arguments would allow the president to order intelligence agencies to kill an American inside the United States.”

Senate Judiciary Chairman Patrick J. Leahy, D-Vt., was noncommittal, saying he wants to see the administration’s rationale in writing. “I told the attorney general that, and I told him that I think he made an excellent speech, but I told him I want to see the memo,” Leahy said.

Intelligence Chairwoman Dianne Feinstein, D-Calif., and Charles E. Grassley of Iowa, the top Republican on the Judiciary panel, said that they had not had a chance to study Holder’s arguments.

But Grassley made it clear he supported what happened with Awlaki. “I’m comfortable with the actions that our government took,” he said.