Justice makes case for killing US terror suspects overseas

When is it legal for US government to kill American citizens?

This is a rush transcript from "The Five," February 5, 2013. This copy may not be in its final form and may be updated.

DANA PERINO, CO-HOST: Apparently, Greg has a horse. He's going to tell us about later.

But, first, we have to ask a question. Is it ever OK for the U.S. government to kill its own citizens? Well, what if they were Al Qaeda terrorists?

There's a secret Justice Department memo that's been leaked to the press and it reveals the Obama administration's legal justification for targeting American suspects who are terrorists overseas with drone strikes.

Attorney General Eric Holder defended this controversy today.

(BEGIN VIDEO CLIP)

ATTORNEY GENERAL ERIC HOLDER: We have, as a basis for action that we take, a congressional statute that allows us to operate against al Qaeda and associated entities not only in Pakistan or not only in Afghanistan but other parts of the world. We say that we only take these kinds of actions when there's an imminent threat, when capture is not feasible and when we are confident that we're doing so in a way that's consistent with federal and international law.

(END VIDEO CLIP)

PERINO: So, drone attacks not new. We've known for a while that the Obama administration has been using them. But the legal justification was something that was revealed and will probably be a big topic at Brennan's hearing on Thursday when he goes before the Senate about the CIA. Can I play a sound bite and I go back?

OK. This is Jonathan Karl and Jay Carney at a briefing earlier.

(BEGIN VIDEO CLIP)

JONATHAN KARL, ABC NEWS: How does dropping a bomb on an American citizen without any judicial review, any trial, not raise the very human rights questions or more human rights questions than something like waterboarding?

JAY CARNEY, WHITE HOUSE PRESS SECRETARY: The questions around this issue are important and the president takes them seriously.

KARL: But let's be clear, this is giving legal justification for killing American citizens without any trial whatsoever, without any evidence.

CARNEY: I would point you to the ample judicial precedent for the idea that someone who takes up arms against the United States, in a war against the United States, is an enemy.

(END VIDEO CLIP)

PERINO: All right. Bob, you wanted to say something?

BOB BECKEL, CO-HOST: Yes. I -- Holder said, he said imminent threat to the United States. Let me read from this memo they're talking about.

The condition that an operational leader presents an imminent threat to violent attack against the United States does not require the United States to have clear evidence of a specific attack in U.S. persons and interests will take place in the immediate future.

In other words, they have -- they can drop a drone on somebody who's a U.S. citizens and with no justification whatsoever as Jonathan Karl pointed out. This is basically murder without having any evidence behind it.

And the idea that somehow you can do this without some clear -- I mean, I can understand if there's a plot being raised by U.S. citizens and you knew about it, but in this case they say specifically you don't have to have that evidence.

KIMBERLY GUILFOYLE, CO-HOST: Oh, now you're being negative on Obama.

BECKEL: It's policy.

ANDREA TANTAROS, CO-HOST: Did I hallucinate?

PERINO: No, it's actually -- I appreciate the intellectual honesty though about that, because one of the questions has been, Greg, that -- age-old question -- if Bush had done that --

GREG GUTFELD, CO-HOST: Yes.

PERINO: -- the Web site I should have created --

GUTFELD: I know.

PERINO: -- when it was revealed that President Bush had authorized the listening and the surveillance of telephone calls between an American or somebody on American soil, could be an American or terrorist, and somebody overseas, it was mayhem and it ruined a very good program. And now, President Obama is doing drone attacks and the left is sort the cats got their tongue.

GUTFELD: You know what? I don't know, Dana, can we please stop calling them drones?

PERINO: OK.

GUTFELD: I prefer to call them peace planes. They're compassionate devices used to protect civilians from evil things like waterboarding by killing them first.

PERINO: From trial.

GUTFELD: They're like Planned Parenthood with remote sensing.

The fact is, when you look at the media, Obama can do not wrong. If he nuked Cuba, they would laud him for curing the Cuban flu.

PERINO: It is very strange.

GUTFELD: Thank you.

PERINO: Where is the ACLU, Kimberly?

GUILFOYLE: Well, this is interesting because they're actually being pretty consistent. This is something they should complain about, right?

Otherwise --

BECKEL: No.

GUILFOYLE: And they are. They're taking the administration to task on this, saying that it is unlawful to do this without specific evidence. The administration is fighting back and you have to understand something. It's up, what, almost 400-something percent the number of drones of what we're using in terms of -- compare to previous administration.

PERINO: See? That's an interesting because I actually think that conservatives, Andrea, are in a little bit on a bind that they would agree that this is OK. Do you think that that's where a lot of them will come down? I mean, setting the hypocrisy aside.

TANTAROS: Well, some conservatives -- there's the neocons and those other conservatives that stand on the other side, which is that's where I stand. I actually think that this DOJ memo is a farce. I think that they had to put this memo out there because they already killed Anwar al Awlaki, who is a U.S. citizen.

But, look, this is the same administration that wanted to give civilian trials to foreign terrorists in downtown Manhattan but they have no problem killing Americans with no due process. I think it's incoherent and frankly laughable and it's not real.

BECKEL: Al Awlaki was in the process of planning and implemented attacks against the United States.

TANTAROS: Yes.

BECKEL: What they're saying is if you have a relationship with a terrorist group, however tenuous that is, you are therefore able to be killed by a drone attack. I mean, that runs against everything that I believe at least that the Constitution of the United States stands for and protection it gives you.

TANTAROS: I think it's even looser than that.

GUILFOYLE: Yes.

TANTAROS: It's almost like if they just think you're a bad person, they can do it, which is --

PERINO: But why not --

TANTAROS: -- once the government, with the Patriot Act, even looking at library records of suspected terrorists during the Patriot Act. So it's hard to believe they'd be quiet on this now.

PERINO: Do you think, Greg, that this was strategically leaked by the administration to get it out there, to take attention away from the A block, on the economy?

GUTFELD: I think you're absolutely right.

(CROSSTALK)

GUTFELD: I'm like -- it's weird, Bob and I are in reverse. I have been for drones under Bush, so I would be a hypocrite if I didn't laud the fact that President Obama has killed more terrorists than anybody. And honestly, I don't see nationality with terrorism.

PERINO: But to Bob's point, how do you know they are terrorists?

GUTFELD: Well, that's a good point.

(CROSSTALK)

GUTFELD: I also want a drone.

GUILFOYLE: It does matter, Dana.

GUTFELD: I want my own drone. There's going to be a time when these things are so small, that -- I mean, for anybody walking home, a woman could have a drone in her purse and when somebody comes at her, she goes like that. And the drone comes up and bangs her in the face.

BECKEL: You know, you say actionable intelligence. If you have actionable -- if you have intelligence that says that this person is planning an attack on the United States, that I think falls --

GUILFOYLE: That's imminent threat, the concept of self defense.

BECKEL: Right. But this -- let me repeat, this does not require the United States to have clear, specific information. Now that is just --

TANTAROS: But, Bob, don't you think this is a CYB? A cover your butt type of --

BECKEL: I don't know what it is. But I know what it is. I don't think it's constitutional.

PERINO: I like CYB, cover your Bob --

(LAUGHTER)

PERINO: -- t-shirt coming up.

All right. That was a god discussion.

GUTFELD: It really was, Dana. Good job.

PERINO: Thank you so much for participating.

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