Presidential Killing Powers Need Checks and Balances

"Killing Americans," my latest for The National Interest, has posted.

drone-strike-digital

Killing Americans,” my latest for The National Interest, has posted.

A secret Justice Department memo detailing in great length when the president has the authority to unilaterally order American citizens murdered without so much as a criminal charge has been released.

[…]

We’ve known for months that the DOJ had offered up a legal justification allowing such extra-judicial killings and that the rationale was constructed to give maximum latitude to the president. There is, in that sense, not much new here. But the matter-of-fact and detailed legalese contained in the memo is nonetheless chilling.

Indeed, the first paragraph of the white paper specifically notes, “The paper does not attempt to determine the minimum requirements necessary to render such an operation lawful; nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances.” Instead, it devotes its 16 pages to the narrow case of “the circumstances in which the U.S. government could use lethal force in a foreign country outside the areas of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force.”

[…]

There’s no denying that al Qaeda poses a unique threat to the safety of American citizens. Operating in ungoverned spaces of Pakistan, Yemen, and elsewhere, they’re largely out of the reach of traditional law enforcement. If al-Awlaki or Khan were performing the exact same acts in Cleveland—or, indeed, London, Paris, or Sydney—they would have been targeted for arrest and extradition, not assassination.

Even so, American citizens should nonetheless be wary of granting the president the power to single out citizens for killing based simply on his own judgment. Aside from being plainly unconstitutional, it’s simply too much trust to place in a single individual. At the very least, the rules ought to be spelled out in legislation that has passed both Houses of Congress and survived judicial scrutiny for constitutionality rather than made internally.

Further, in addition to checks and balances, there has to be more transparency. The notion that the government can compile a list of citizens for killing, not tell anyone who’s on it or how they got there, is simply un-American. Surely, a modern version of a WANTED: DEAD OR ALIVE notice could be publicly circulated, with a listing of the particulars. Maybe the named individual would turn himself in rather than wait for the drones to find him. Or maybe he’d hire an attorney to present evidence he’s not actually an imminent threat to American citizens.

For centuries, civilized societies have understood that even wars must be fought according to rules, which have developed over time in response to changing realities. Rules are even more important in endless, murky wars such as the fight against Islamist terror groups. Currently, we’re letting whomever is in the Oval Office pick and choose from among the existing rules, applying and redefining them based on his own judgment and that of his advisors. We can do better.

More at the link.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Tsar Nicholas says:

    Nah.

    Congress already is a check and balance. If it doesn’t like how Rambobama is running the drone war it simply could de-fund the program.

    Having to stand for reelection and only getting two terms in office also are proper checks and balances. If Zombieland doesn’t like how the Prez is going about her business they can emerge from their stupors, even temporarily, and vote her out of office.

    Legislating war powers of the CIC sounds nice and of course egalitarian, but it doesn’t make any sense. How much of a worldwide laughingstock would we be if Congress voted down a requested war power during a war? Again, if they don’t like how a war is being run Congress has the purse strings power. It worked for the Democrats regarding Vietnam. And what happens if we codify the drone war and then some emergency arises and the Prez absolutely needs to go outside of those rules? Does she need to call a special session of Congress to get advance approval?

    “Civilized societies,” oh, say, for thousands of years, have recognized that in matters of war your nation’s civil laws and even the rules of war themselves cannot be de facto suicide pacts. In recent decades and centuries we’ve seen that obvious principle applied in dozens of contexts, by various world powers, on various continents. For example Sherman’s march to the sea and his attendant scorched earth campaign. The British in Africa in connection with the Boer Wars. Unrestricted submarine warfare in WWII. The assassination of Adm. Yamamoto. Of course FDR’s domestic internment program.

  2. markm says:

    When Obama first took the reins, I NEVER would have guessed he would have expanded the drone program. I think it’s one of the better things he’s done and it’s a very useful tool for taking out ‘terrorists’.

    …….now, he’s creeping me out.

  3. Dave Schuler says:

    Congress’s complaint is that the administration hasn’t provided it enough information for it to exercise its oversight function. It’s not merely partisan posturing. Yesterday Ron Wyden issued a memo:

    “Every American has the right to know when their government believes that it is allowed to kill them,” Wyden said. “The Justice Department memo that was made public yesterday touches on a number of important issues, but it leaves many of the most important questions about the President’s lethal authorities unanswered. Questions like ‘how much evidence does the President need to decide that a particular American is part of a terrorist group?’, ‘does the President have to provide individual Americans with the opportunity to surrender?’ and ‘can the President order intelligence agencies or the military to kill an American who is inside the United States?’ need to be asked and answered in a way that is consistent with American laws and American values.”

  4. stonetools says:

    In the end, this kind of war against terrorists is necessarily going go be largely secret and is nenever going to be as transparent as the ACLU wants it to be.
    Take al-Awlaki . Lots of people knew the US government was after al-Awlaki , and that al-Awlaki richly deserved to be on the Administration’s get list. Let’s face it, the man explicitly took up arms against the USA and planned to kill US civilians. How the US was going to get him really should be something within the discretion of the executive.
    Sure, we could post the Administratin’s kill list oin the White House web site. But then what,? These jihadists are in it to the death.Al-Awlaki had oppurtunies to turn himself in. He didn’t want to. Generally, if these guys want to turn themselves in, there are ways for them to do that.I see posting a kill list of being of limited utility.

  5. C. Clavin says:

    I think every reasonable person agrees there needs to be oversight.
    I think it”s interesting that Schuler points to Wyden to say this is non-partisan.
    But it is partisan in that Republicans never called Bush on torture…or on his and Cheney’s wild expansion of Executive power. So yeah…Executive power needs to be checked…and good on Tsar’s liberal media for exposing this memo and good on Democrats for trying to check the power of their own Executive. Maybe if Republicans were interested in governing we wouldn’t be 12 years into this so-called war on a tactic and still be trying to figure out how to do it.

  6. Mikey says:

    There are ways to provide independent oversight without revealing classified information. We do it with surveillance all the time. The objective isn’t to make everything public, it’s to ensure someone not within the President’s inner circle gets to look at the evidence and determine whether it’s sufficient to move forward.

    At this point we have what’s essentially a secret Star Chamber proceeding at which nobody outside the White House gets a look. Secret evidence, secret meeting, secret order, secret decision, no oversight.

    “But these are BAD GUYS!” is no excuse, and the fact so many Americans say that and shrug when they hear about this is an indicator of how far we’ve fallen since 9/11/01.

  7. MBunge says:

    @Mikey: “At this point we have what’s essentially a secret Star Chamber proceeding at which nobody outside the White House gets a look.”

    It’s important to remember that this is all being done under the context of that “go after Al Qaeda” authorization Congress passed after 9/11. We essentially declared war against them and these drone strikes are an extension of that effort. Did Congress conduct oversight hearings on the bombing runs over Berlin? Did they do so for any of the island invasions of the Pacific? Is Obama drone-striking anyone who’s not at least allegedly connected with Al Qaeda?

    A lot of the response to the drone program appears rooted in a belief that we are no longer on a war footing. That Al Qaeda has been defeated and we should return to pre-war or non-war practices. Well, then we should officially end the state of war. Castigating a President for fighting a war too aggressively seems silly.

    Or to put it another way, as long as the President is almost exclusively on the hook for any blame that comes from not doing everything possible to fight Al Qaeda, how can you place any limits on what he does to win that fight? Let Congress rescind the state of war so that if another 9/11 happens, they also are held responsible for that.

    Mike

  8. Mikey says:

    @MBunge: Is being “allegedly connected with al Qaeda” sufficient justification for the unilateral pronouncement of a death sentence on American citizens using secret evidence in a secret proceeding with no oversight by, or accountability to, anyone outside the White House? That’s what I’m talking about here.

    I mean, if the President has the power to order an American killed, without a trial or even the most basic Constitutional requirements of due process, simply because that American is ALLEGED to be co-operating with al Qaeda, what power does he not have? And saying “But Congress gave him that power” is no more a legitimate excuse than “but these are BAD GUYS.”

  9. MBunge says:

    @Mikey: “Is being “allegedly connected with al Qaeda” sufficient justification for the unilateral pronouncement of a death sentence on American citizens using secret evidence in a secret proceeding with no oversight by, or accountability to, anyone outside the White House? That’s what I’m talking about here.”

    I think you missed an important word. WAR. As long as we are in a Congressionally authorized de facto state of war, the President’s actions must be evaluated by the standard of war, not the peace time standard of the civilian judicial system.

    And I see you have no problem at all with the President killing as many anonymous brown people as he wants, just so long as they don’t have a U.S. birth certificate. Racist.

    Mike

  10. C. Clavin says:

    “…Let Congress rescind the state of war…”

    Aye, there’s the rub.
    This is serious life and death business and it takes sober, mature, responsible people to address it. Then there is Congress. If you have any question about the ability of Congress to be sober, mature, and responsible then you should review the tapes from last weeks Hagel hearings.

    Sometimes when I’m high self-medicating for potential future occurances of cancer and/or glaucoma I think about the 112th/113th Congress taking the place of the Second Continental Congress in 1775…f’ing hilarious.

  11. Mikey says:

    @MBunge: Last I checked, “WAR” does not invalidate the Constitution or eliminate its requirements. So that’s no legitimate excuse, either.

    And I see you have no problem at all with the President killing as many anonymous brown people as he wants, just so long as they don’t have a U.S. birth certificate. Racist.

    Really? This bullshit?

    In case you missed it, the post to which we’re responding deals specifically with the President’s power and when it can be used to kill AMERICANS. So that’s how I’m limiting my discussion. To AMERICANS. The problems involved in doing it to citizens of other countries are a different issue, and my leaving it out of the discussion–because, you know, the post to which we’re responding deals specifically with AMERICANS–doesn’t mean I’m a “racist.”

  12. James in LA says:

    It is Congress’ responsibility to repeal the Patriot Act, authorization of forces and any whiff of indefinite detention. No President will ever cede back these powers willingly, and sooner or later, America will elect a President with the temperament of John McCain. Or worse, another weak man-child backed by a ravenous veep.

    Right now, any one of us can be picked up, locked away, and that would be that. No one would even know it happened, or why. There is nothing preventing this in law once you are given a certain label by the executive. There are over 50 countries who would be ready to receive you.

    Why do we permit it?

  13. Mikey says:

    @James in LA:

    Why do we permit it?

    Because WAR, apparently.

  14. john personna says:

    I’d like to see progress on this, but I’m a bit cynical.

  15. JohnMcC says:

    The uproar over the use of the Predator/Hellfire system seems thoroughly nuts to me. First, this is not law enforcement. It is a war. It’s a different kind of war than previous ones. But a quick look at the videos available on-line of the bombings that Al Qaida inflicted on Americans will remind anyone who has forgotten just how serious these people are about their war on us.

    Second, it is not unprecedented except that we can aim the things so precisely. The V-1 and V-2 weapons that Germany used against England in 1944-45 were not part of the indictments at Nuremburg; they were considered legal weapons. If German engineers had been able to precisely target Allied generals and Members of Parliament would that have made them illegal under the laws governing warfare? Fortunately we don’t know but just to ask the question is to answer it in the negative.

    Further, why does the fact that the Predator is a remotely piloted aircraft give even one seconds pause? Would we all feel better if there were an actual human being inside the thing? Objections to the program based on the fact that it is a “drone” reveal more about the fastidious nature of the person objecting than about the program.

    More, when did it become a matter of “checks and balances” or “due process” to kill people who have made no secret of their emnity to us during a war? In ’43 we hunted down and assassinated the Japanese Admiral Yamamoto. If by chance he had been born in the US — to Japanese parents attending a University, for example — would that make his killing a crime? Again, to ask the question is to expose the objection as ridiculous.

    People should be worrying about the whole business of undeclared wars, or about the 4th Amendment vs the Patriot Act or Quantanamo and non-judicial imprisonment. This concern over the use of a particular weapon-system is a trap for small minds.

  16. stonetools says:

    @john personna:

    Indeed. I can see the President pull back on drone war, the Republicans run against this on as being soft on terrorism, and gain seats in the 2014 elections-especially if some terrorist incident happens.
    Gleen Greenwald and the liberals will be happy, and the rest of us will be screwed.

  17. Spartacus says:

    James wrote:

    Even so, American citizens should nonetheless be wary of granting the president the power to single out citizens for killing based simply on his own judgment.

    We should be downright outraged by it and we should strongly oppose it.

    James, please continue to use your platform to draw attention to this problem.

  18. C. Clavin says:

    @ John McC…

    “…First, this is not law enforcement. It is a war…”

    That’s the problem…this something different…it is neither war nor law enforcement…it’s both war and law enforcement. Because it is something new…we need to re-think and re-tool our administration of it.
    Most appropriately that would have taken place from the beginning of the effort. Unfortunately Republicans, as Republicans are wont to do, abdicated their responsibility. Now we are dealing with it twelve or thirteen years later.

    Interesting question: who leaked this to NBC? And why?

  19. Mikey says:

    @JohnMcC:

    If by chance he had been born in the US — to Japanese parents attending a University, for example — would that make his killing a crime? Again, to ask the question is to expose the objection as ridiculous.

    It’s not ridiculous at all. If the person is an American, the Constitution applies. It’s not just a technicality, because if it can be declared a technicality for one American, it can be declared a technicality for any American.

    What constitutes due process in cases like this is not what constitutes due process when we’re dealing with common criminals here in the U. S., but that doesn’t mean the requirement for due process goes away with a wave of the President’s hand.

  20. Septimius says:

    Remember when they gave Obama the Nobel Peace Prize. Lol.

  21. stonetools says:

    @Mikey:

    It’s not ridiculous at all. If the person is an American, the Constitution applies. It’s not just a technicality, because if it can be declared a technicality for one American, it can be declared a technicality for any American

    The question is whether we are talking about war or law enforcement. If we are in war mode, enemy combatants don’t get due process, period. The military can kill them at will, and whether they are are US citizens isn’t relevant. If they are on the battlefield and they haven’t surrendered, they’re fair game. The military can kill them by drone, commando raid, artillery bombardment, sniper’s bullet, whatever.
    If we are talking law enforcement, different story. Then we need to formally charge him , extradite him, and bring him to trial. If we can’t extradite him, tough luck.we have to wait ill we can get jurisdiction.

    Looking at the Anwar al-Aulaqi Wikipedia page, its quite clear that Mr. al-Aulaqi had allied himself with al-Queda , declared war on the USA and the West and was doing his best to kill Westerners in general and Americans in particular. Not only the US government said so: the UN said so, the Canadian government said so, the Uk government said so, and the Yemeni government said so.

    A few days later, the United Nations Security Council placed al-Aulaqi on its UN Security Council Resolution 1267 list of individuals associated with al-Qaeda, saying in its summary of reasons that he is a leader of al-Qaeda in the Arabian Peninsula and was involved in recruiting and training camps.[211] That required U.N. member states to freeze his assets, impose a travel ban on him, and prevent weapons from landing in his hands.[212] The following week, the Canadian government ordered financial institutions to look for and seize any property linked to al-Aulaqi, and the Royal Canadian Mounted Police’s senior counter-terrorism officer Gilles Michaud singled out al-Aulaqi as a “major, major factor in radicalization”.[211] In September 2010, Jonathan Evans, the Director General of the United Kingdom’s domestic security and counter-intelligence agency (MI5), said that al-Aulaqi was the West’s Public Enemy No 1.[213]

    If you declare war on the USA and the West, then you takes your chances, US citizenship nothwithstanding. I’m afraid I just don’t see the problem here.

  22. JohnMcC says:

    @Mikey: The similarity of the killing of Mr Awlaki to the killing of Adm Yamamoto is actually pretty remarkable. It was based on electronic surveillance and the decision was made by Pres Roosevelt personally. If a technological method had existed for doing similar assassinations to senior Nazi officials I doubt the lack of due process would have bothered anyone even if one or more of those officials had a claim on American citizenship.

    As I said, damn shame that other aspects of our war on Al Qaida haven’t occupied the attention of civil liberty purists.

  23. Mikey says:

    @stonetools:

    If we are in war mode, enemy combatants don’t get due process, period. The military can kill them at will, and whether they are are US citizens isn’t relevant. If they are on the battlefield and they haven’t surrendered, they’re fair game.

    OK, define “battlefield” in this context. If it’s “the whole world” then apparently we’ve given up on the idea that Presidential power should have any limit whatsoever.

    In past wars, Americans have indeed gone to join the forces of our enemies, and they have been killed. But they’ve been killed on clearly-defined battlefields, while engaged in direct combat. Al-Awlaki was killed doing neither. He was a Bad Guy who hung out with Bad Guys and apparently that was enough.

    Well, it’s not enough for me, and it shouldn’t be enough for any other American. And the fact it is saddens me for what 9/11 has turned us into. Apparently as a nation we’re no different from the paranoid gun nut who thinks he needs 100 AR-15s and 10,000 rounds of ammunition in case Uncle Sam comes beating down his door.

  24. Mikey says:

    @JohnMcC: I’m not a “civil liberty purist,” I just believe the Constitution applies to every American, even the most awful.

    Also, just to make it abundantly clear, my complaint is not that al-Awlaki was killed, it’s how the decision was made, and the precedent it set, and the fact there’s no oversight at all. Al-Awlaki is dead, I think the way it was done violated the Constitution, but at this point it’s entirely moot. My concern is for the future and how this unchecked power could be abused.

  25. grumpy realist says:

    Aside from Congress sitting on its thumbs while this has all happened, there’s also the difficulty of getting a case involving this policy in front of the Supreme Court. Who’s going to bring the case and under what action?

    Also, as long as this involves the POTUS providing orders to US troops abroad (even if killing Americans abroad), the courts are likely to decide it a political question and kick the problem back to Congress. It would be one thing if the orders were being given to deal with Americans situated in the US. Abroad? Well….that’s a different matter.

    Our laws really aren’t set up to deal with the rights of Americans living abroad. Idealistic people would like to claim that Americans living abroad have the same rights as Americans living in the US, but there’s a heck of a lot of activity (legal and otherwise) that seems to indicate that’s not necessarily so. Don’t make assumptions that you don’t have a legal basis to stand on. We’ve got damn little actual case law in this area, so a lot of this will be cases of first impression.

  26. grumpy realist says:

    P.S. Yes, and this is what happens when you declare a Forever War and you’re dealing with a part of the planet that is lacking in judicial solutions, to put it mildly. If you don’t like what military justice produces, then don’t shove it into that area.

  27. Mikey says:

    @grumpy realist:

    Idealistic people would like to claim that Americans living abroad have the same rights as Americans living in the US, but there’s a heck of a lot of activity (legal and otherwise) that seems to indicate that’s not necessarily so.

    I’m aware of this. However, the Supreme Court ruled in Reid v. Covert that the Fifth Amendment applies to Americans no matter where in the world they are.

    As Justice Hugo Black wrote in that case, “The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government.”

    It seems in addition to Supreme Court Justice, Black was also a prophet.

  28. Ron says:

    I fail to see why anyone worries about American citizenship in these cases:

    (1) If this is indeed legally a war, then enemy combatants, whether foreign or American, can be targeted and killed.

    (2) If this is not a war, then neither American citizens nor foreigners could be targeted and killed.

    When I read articles and posts where people worry about American citizenship in these cases, they strike me as irrelevant ‘gotcha’ complaints. These drone strikes are either legal for everyone, or a war crime for anyone.

    And no, the President does not claim the powers to blow up people in the US, whether they are part of Al Quaida or not. Nor to do so in France. These war measures only apply to regions outside of normal legal jurisdiction.