Eric Holder Suggests Scary Iran Plot Was Legal

I’m sure that Eric Holder didn’t mean to suggest that the assassination plots purportedly planned by Iran’s Quds Force and Manssor Arbabsiar with the assistance of a DEA informant targeting the Saudi Ambassador to the US, Adel al-Jubeir, as well as Israeli and Saudi figures in Argentina, are legal.

But given the debate between the ACLU’s Anthony Romero and Jack Goldsmith over whether assassinations in this country would be legal, I wanted to look at what he did say.

In their debate on WBUR’s On Point, Romero said something to the effect of Holder’s argument for targeted killing would serve as justification for other countries to target their own “terrorists” in our country. Goldsmith objected, saying such assassinations would only be legal in failed states (implicitly, like Yemen and Pakistan) where a state was unable to apprehend such a figure.

That’s not what Holder said. Here’s what he did say:

Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan.   Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want.   International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally.   But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces.  [my emphasis]

Strip this passage of its American exceptionalism, and here’s what it justifies:

  • Attacks in countries from which attacks have been planned or launched
  • Targeted killings in countries where the home country had assented to the assassination attempt
  • Targeted killings in countries that were unable to eliminate the threat against a third country
  • Targeted killings in countries that were unwilling to eliminate the threat against a third country
  • Targeted killings of senior operational leaders

As a threshold matter, Holder does not limit assassinations to failed states–those states that, according to Goldsmith, do not have the ability to apprehend a person who is a threat. (Note, I think Goldsmith overestimates the degree to which Yemen in this case was unable to get Awlaki and underestimates the degree to which Ali Abdullah Saleh didn’t want to take responsibility for doing so.)

Holder also says assassinations in countries that are unwilling to eliminate such a threat would be legal.

Let me be clear: I don’t support this argument, from a practical standpoint, in any case. But Iran surely could argue that Israel poses an imminent threat to it right now (Israel is, of course, arguing the reverse right now, and appears to be conducting assassinations on just that logic). And it could argue–less credibly, but with some justification–that Saudi Arabia does too.

And one of the key figures trying to broker efforts to curtail Iran’s sphere of influence in the Middle East, whether by sanctions or asymmetrical treatment of Shiite protestors or in support of a strike on Iran, would be Saudi Arabia’s Ambassador to the US, Adel al-Jubeir, precisely the person allegedly targeted by Iran’s Quds Force last year.

Mind you, I suspect Iran couldn’t make the case that Jubeir, himself, presented an imminent threat (there are a long line of Israelis, though, starting with Bibi Netanyahu, against whom such a case would be a cinch). But Holder doesn’t believe anyone should be able to review these decisions: not a judge, and especially not the international community. So according to the practice the US embraced with the Anwar al-Awlaki killing, Iran could just declare that Jubeir or Bibi are senior operational leaders in a plot to attack Iran. It could make some assessment that there would be no way the US would help it arrest these figures. So, voila, according to Holder’s logic, Iran could assassinate these figures in the US.

It’s a terrible argument. And the only thing preventing such interpretations from being invoked by Iran and any number of other countries is US might, which effectively limits the ability to make such arguments to the US and countries, like Israel and its presumed assassination of Iranian scientists, we protect.

Now, I’m still agnostic whether Scary Iran Plot existed outside of the well-rehearsed lines of a DEA informant. As of February 1, the government had not yet even given Arbabsiar’s defense counsel all his post-arrest statements on which so much of the case rests (the trial is conveniently scheduled for the weeks leading up to the election).

But the Scary Iran Plot is a perfect example of why Holder’s argument is terrible precedent.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

18 replies
  1. SpanishInquisition says:

    with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat

    On DKos whenever these sorts of things would come up, I’d point out how that the Obama administration’s justifications could be used to go bomb France by assassinating Roman Polanski since they failed to extradite him. Even bombing France people just wanted to ignore the implications – and that’s in Europe.

    These are increasingly scary times and there’s always partisan defenders – first for Bush and now for Obama – where they’ll always happy talk and evade while their guy in the White House shreds the Constitution.

  2. henryporter says:

    @emptywheel — But, by his ‘logic’, it doesn’t matter anyway whether Polanski actually IS an imminent threat, because all decisions are made by a secret group, and are unreviewable by anyone. So whether it’s true or not is a moot point, all they have to do is CLAIM it’s true, and dispense some Freedom Drones.

  3. SpanishInquisition says:

    @emptywheel: I’m talking about the internal logic which I’ve heard over and over again from apologists how we can now drop bombs on anyone because a “nation is unable or unwilling to deal effectively with a threat.” Obama is one-upping Bush with going from extradinary rendition and subsequent torture to outright assassination in foreign countries without their consent. Seeing the trajectory we are going, I see how the internal logic could both be applied domestically or to use military action for alleged criminals that foreign countries won’t extradite…I could for instance see Assange assassinated by Obama if he didn’t get extradited to the US or otherwise end up in a prison.

  4. SpanishInquisition says:

    @henryporter: Yes, we are told there’s secret evidence that proves X, Y or Z about someone, but it’s never actually held up for real scrutiny. It’s “In Obama We Trust” because it’s his decision both who is a terrorist and who is a threat rather than this being some judicial review.

    Obama could bomb Polanski in France by saying France refused to extradite Polanski and now Polanski is an immenent threat to all the young US girls who visit France each year. Obama could even say Polanski is actively engaging in ongoing child molestation of young US tourists since it’s not like he’d have to prove his allegations anyway….then all he’d do is have some anonymous admin official claim there’s evidence proving it. Obama does this all the time claiming there’s secret evidence backing up his claims, with these claims made by anonymous officials.

    I might sound like I’m exaggerating, but how do we know how much the Obama admin is exaggerating their claims or even outright making stuff up entirely? We know Obama is running domestic spying using the war on drugs as cover and we know he’s authorized domestic drones, so who knows what fantastical stories his administration could come up with.

  5. rosalind says:

    OT: as the promised Trash thread never materialized over the weekend, I am forced – forced! – to post cute baby horse pics here. For all those Zenyatta fans, she had her first colt last week. More pics here.

    and her baby sis Eblouissante (h/t Bmaz) is hanging out in her old Barn 55 at H’wood Park, being trained by Z’s trainer John Shirreffs, and is expected to have her racing debut sometime soon. OT: out)

  6. Bob Schacht says:


    Yes, and here we are in MARCH MADNESS and still no trash talk. Who’s in charge around here, anyway? /s
    With Peyton Manning hanging around in Phoenix, and spring training already in progress, there is a lot to talk about!

    Bob in AZ

  7. rosalind says:

    @Bob Schacht: oh, mom & dad have been talking, just not in front of us. tweets from a few days ago:

    rosalind [email protected] @bmaz you two have been awful quiet on the Peyton Place front. #ruleoflawtrumpsall

    emptywheel [email protected] Only in public. @bmaz won’t shut up about it backstage, and Mr. EW is even worse.

  8. What Constitution? says:

    Pretty picky about parsing Holder’s statement based on nothing more credible than what he actually said and what those words mean if, well, read by somebody.

    But come on, here. We all know that what really matters is what Holder meant to say (or, perhaps more precisely, what he was thinking) and, upon going through the exercise of reading his actual words it’s pretty apparent that he meant to add “unless to do so would be inconvenient to US government interests or might apply to somebody powerful we might want to protect.”

    See, with that background assumption added, there’s simply nothing wrong with contending that his statement wouldn’t apply to the Scary Iranian Plot or the rights of other nations. Just like it’s perfectly OK to take 20 grand for speaking on behalf of MEK here but mentioning Hamas could land you in prison. It’s as plain as the nose on Voldemort’s face.

  9. rugger9 says:

    However, as eloquently noted above by several commenters, it’s the potential for mischief and/or justification by those who want to use their own prism to see things that is the real issue here. Such as the Iranians, or more importantly the PRC government that views Taiwan as a “renegade province” and Tibet as a rebellious region [“splittist” IIRC], and any interference in their actions as interference in purely domestic affairs. How about the cyber attacks arising from the PRC already identified by the DOD et al as a problem? We know from the various trade agreements and implementation thereof that the PRC government will push interpretation in their favor so far as to warp the agreement. Steel dumping, melamine, intellectual property, fishing, slave labor, environmental issues, etc.

    Not that we’re trying to just bash the PRC here [we’re no angels in everything either, nor are the British, French, Germans, and Russians, etc., etc.], but what Holder has to understand is that words mean things and realize is that those who have already made interpretation into an art form of policy tweaking will look for any opening in the armor of the agreements made between nations to justify actions they’ve already decided to take.

  10. emptywheel says:

    @rugger9: That’d be a doozy. Imagine if PRC decided they could eliminate the moral leadership for Tibet, the Dalai Llama, while he was safely ensconced in the US?

  11. rugger9 says:

    @emptywheel: #14
    It’s a reason I mentioned it. These are Pandora’s boxes that Holder is opening, and it’s all to provide more cover for the illegalities they have been doing, supposedly to keep us safe. As covers get blown or debunked, they have to glibly come up with another one, pronto, and will tie themselves into knots.

    Someday they will realize that is why “the truth sets you free”, but I’m not holding my breath.

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