Drone strikes and presidential power
The Kansas City Star
John Brennan’s Senate confirmation hearings dominated the news cycle last week. One of the main topics of the hearings was Brennan’s support for an expansive interpretation of presidential power vis-à-vis the targeted killing of American citizens without judicial oversight or due process. Much of the discussion centered on the Obama Administration’s use of unmanned drones to launch airstrikes against American citizens accused of taking up arms against their government. Although few Americans are moved with sympathy for men like Anwar al-Awlaki, the American-born leader of an al-Qaeda affiliate group who was killed in Yemen by one such drone strike in 2011, the principle that would allow senior executive branch officials to order a lethal assault on an American citizen (subject only to the discretion of the President) is vast in its scope and worthy of more scrutiny.
Consider the recently released Department of Justice white paper setting out the legal framework for such attacks. According to the paper, the executive branch may target an American citizen “who is a senior operational leader” of al-Qaeda when 1) “an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States”; 2) “capture is infeasible, and the United States continues to monitor whether capture becomes feasible”; and 3) “the operation would be conducted in a manner consistent with applicable law of war principles.” Yet the President is the sole judge of when these conditions are met, and, according to the memo, the Obama Administration does not consider these to be the “minimum requirements necessary to render a lethal operation against a U.S. citizen lawful.”
In the end, it seems, we are thrown back against the claim that the President, as commander in chief, may order a targeted individual assault on an American citizen when he determines that it is in the national security interests of the United States to do so. This is one of those rare points on which the White House and congressional Republicans agree. As Rep. Tom Cotton (R-AR) told Fox News’s Chris Wallace yesterday morning, any judicial oversight of the Obama Administration’s drone strike program “would be an unconstitutional infringement on the president’s rights to keep America safe.”
Perhaps Cotton is correct—many talented lawyers certainly agree—but the power of the President to put American citizens on an effective kill list is sweeping in its reach and troubling in its implications.