Barack Obama’s assertion that he has the authority to kill American citizens abroad suspected of being terrorists is disturbing both because of its constitutional arrogance and because its flimsy legal justification resembles the dubious Bush era arguments for presidential power that he supposedly criticized and repudiated.
After 9-11, President Bush asserted dubious constitutional authority to prosecute the war on terrorism. He did that in two ways. The first was to point to a congressional joint resolution, the Authorization to Use Military Force of September 18, 2001, which urged the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.” The President declared that this language gave him extensive power to respond to the terrorist attacks.
Second, regardless of this language, four Justice Department memoranda asserted inherent or extra-constitutional presidential power to respond to terrorism. These memoranda include a September 25, 2001 Department of Justice opinion written by John Yoo which describing presidential war making powers, then a second legal opinion of January 22, 2002 addressing the treatment of al Qaeda and Taliban detainees. The third memorandum is from August 1, 2002, reviewing the classification and treatment of al-Qaeda held outside the United States, (the torture memo) while the fourth was a January 19, 2006 Department of Justice memorandum supporting President Bush's decision to order the warrantless wiretapping of telephone conversations by the National Security Agency.
These four memoranda, taken together, framed the Bush Administration's arguments for its post 9-11 foreign policy and national security authority by asserting a conception of presidential power largely exempt from congressional and judicial oversight in foreign affairs and the conduct of war. Effectively, Bush argued that the president had inherent powers as commander-in-chief to torture, wiretap, and detain suspected terrorists, even if they were American citizens, without any constitutional review or authorization. These legal arguments were severely criticized by most constitutional scholars, and largely ignored by the Supreme Court in several opinions surrounding the detainment of suspected terrorists at Guantánamo Bay.
The Obama Administration’s assertion in a recently released Department of Justice White Paper of presidential authority to kill American citizens abroad suspected of being terrorists rests upon many of the same arguments of Bush, especially the torture memo. The White Paper argues that the president can order the killing of American citizens if there is insufficient opportunity to capture and detain them and if it would save American lives.
The memo begins with the claim that it would be constitutional to kill Americans abroad who are in combat zones fighting against the United States. From there the White Paper takes the dubious next step to argue that it would be permissible to kill Americans anywhere in the world outside of the United States, even beyond battlefields. It justifies this claim with questionable constitutional logic. First, it cites Matthews v. Eldridge, a Supreme Court Fourteenth Amendment Due Process case. Matthews is an administrative law case the defines when the government must provide hearings to individuals denied Social Security benefits. That case said hearings were not necessary when the cost to the government was greater than the possible injury to someone losing benefits. Applied here, the benefit of saving American lives outweighs any individual constitutional rights.
The problem here is that killing individuals is different from denying Social Security benefits. This is simply the wrong legal analysis. A more appropriate one might be to examine the law governing police use of deadly force. Here the Supreme Court has ruled that the Fourth Amendment is the legal standard. Under the Fourth Amendment the killing of an individual is considered a search and seizure, and an exceedingly high constitutional bar is used to determine whether it is permitted. The White Paper acknowledges this Fourth Amendment standard, but gives it barely a one paragraph perfunctory dismissal.
Obama reliance on the deadly force Fourth Amendment analysis is also wrong. Determination of police use of deadly force is subject to judicial review. The White Paper dismisses the idea that the courts have the right to review its use of force, let alone its determination of who is suspected of being a terrorist. On it own , presidents can be prosecutor, judge, and executioner, subject to no constitutional checks. Individuals falsely suspected of being terrorists have no recourse except to duck when the drone strikes.
Finally, the White Paper extends two Bush era arguments. First, the Authorization to Use Military Force permits the killing of American citizens abroad anywhere when suspected of being terrorists, especially since there is no geographic limitation in this congressional declaration defining where the president can fight the war on terrorism. Today Afghanistan, tomorrow Canada? Lastly, the White Paper simply asserts that the president has the power as commander in chief to kill Americans he suspects as terrorists.
The White Paper exploits every legal ambiguity and asserts that it favors presidential power. It makes dubious assertions that run roughshod over legal precedent, and it simply makes the type of claims that the four Bush-era memos made. It is another president aggrandizing constitutional or extra-constitutional power that does not exist. He is like Nixon and the secret war in Cambodia or Reagan and Iran-contra. Many expected better from this president. He was the one who criticized Bush for his lack of transparency and disregard for the Constitution. Now Obama is doing exactly the same as his predecessor, only taking it to a new level in asserting a right not simply to detain and torture, but to kill.