Pres­i­den­tial power to kill?

Obama’s as­sas­si­na­tion or­ders de­face Con­sti­tu­tion

The Washington Times Daily - - Opinion - By Stephanie Hessler

For the first time, Pres­i­dent Obama’s Jus­tice Depart­ment has at­tempted to ex­plain the ad­min­is­tra­tion’s pol­icy on tar­geted killings of U.S. cit­i­zens. At­tor­ney Gen­eral Eric H. Holder Jr.’s speech ear­lier this month came five months af­ter an Amer­i­can cit­i­zen, An­war al-awlaki, was killed in Ye­men by a preda­tor drone with­out any ju­di­cial re­view. The pres­i­dent’s decision to tar­get and kill an Amer­i­can cit­i­zen, far from any bat­tle­field, presents one of the gravest con­sti­tu­tional is­sues we have faced in the war on ter­ror. The Jus­tice Depart­ment’s de­fense of unchecked power to kill U.S. cit­i­zens raises sig­nif­i­cant con­sti­tu­tional con­cerns.

The Fifth Amend­ment pro­tects all cit­i­zens from be­ing “de­prived of life, lib­erty, or prop­erty with­out due process of law.” Mr. Holder claims due process was pro­vided, in that the ex­ec­u­tive branch con­ducted a “thor­ough and care­ful re­view.” He as­serts that “‘due process’ and ‘ju­di­cial process’ are not one and the same.” But he is quite wrong. Due process must be ju­di­cial process un­less Congress spec­i­fies oth­er­wise.

The due process clause, like most of the Bill of Rights, is es­sen­tially a sepa­ra­tion-of-pow­ers pro­vi­sion. Our Founders un­der­stood due process as a ju­di­cial func­tion de­signed to serve as a check on pres­i­den­tial power. As Alexan­der Hamil­ton ex­plained, “the words ‘due process’ have a pre­cise tech­ni­cal im­port, and are only ap­pli­ca­ble to the pro­ceed­ings of courts of jus­tice.” In other words, the Con­sti­tu­tion con­tem­plates that the pres­i­dent may de­prive cit­i­zens of life, lib­erty and prop­erty — but the check on this power is that he may do so only if there has been a ju­di­cial process to ap­prove his ac­tions. Ar­ti­cle II pro­vides: “The ex­ec­u­tive power shall be vested in a Pres­i­dent.” And be­cause the Con­sti­tu­tion cre­ates a uni­tary ex­ec­u­tive, vest­ing all ex­ec­u­tive power in a sin­gle per­son, it fol­lows that an in­traex­ec­u­tive check on ex­ec­u­tive power is re­ally no check. Un­re­view­able and unchecked pres­i­den­tial power is in­con­sis­tent with our sys­tem’s fun­da­men­tal sepa­ra­tion of pow­ers.

The Supreme Court has af­firmed the ju­di­ciary’s role as a check on pres­i­den­tial power in the war on ter­ror. In Hamdi v. Rums­feld, a 2004 case in­volv­ing the closely re­lated ques­tion of mil­i­tary de­ten­tion of a U.S. cit­i­zen, the Supreme Court ex­plic­itly “re­ject[ed] the Gov­ern­ment’s as­ser­tion that sepa­ra­tion of pow­ers prin­ci­ples man­date a heav­ily cir­cum­scribed role for the courts in such cir­cum­stances.” As the court said, the gov­ern­ment’s ap­proach “can­not be man­dated by any rea­son­able view of sepa­ra­tion of pow­ers, as this ap­proach serves only to con­dense power into a sin­gle branch of Gov­ern­ment.” To the con­trary: “[A] state of war is not a blank check for the Pres­i­dent when it comes to the rights of the Na­tion’s cit­i­zens. What­ever power the United States Con­sti­tu­tion en­vi­sions for the Ex­ec­u­tive in its ex­changes with other na­tions or en­emy or­ga­ni­za­tions in times of con­flict, it most as­suredly en­vi­sions a role for all three branches when in­di­vid­ual lib­er­ties are at stake.” If this is true when lib­erty is at stake, it surely is all the more true when life is on the line.

Mr. Holder cor­rectly notes that na­tional se­cu­rity op­er­a­tions of­ten in­volve “real-time de­ci­sions that bal­ance the need to act, the ex­is­tence of al­ter­na­tive op­tions, the pos­si­bil­ity of col­lat­eral dam­age and other judg­ments — all of which de­pend on ex­per­tise and im­me­di­ate ac­cess to in­for­ma­tion that only the ex­ec­u­tive branch may pos­sess in real time.” Fair enough. If the ex­ec­u­tive branch sud­denly finds a ter­ror­ist in its sights, it does not have to wait for a court or­der to pull the trig­ger. But these sorts of ex­i­gen­cies can only jus­tify post­pon­ing ju­di­cial re­view un­til af­ter the event; it can­not jus­tify dis­pens­ing with ju­di­cial re­view al­to­gether.

And in any case, al-awlaki did not present this sort of prob­lem. He re­port­edly was on the U.S. kill list for more than a year. In­deed, a preda­tor drone strike tried and failed to kill him months be­fore he was ac­tu­ally killed. Bal­anc­ing “the need to act, the ex­is­tence of al­ter­na­tive op­tions, the pos­si­bil­ity of col­lat­eral dam­age” and so forth is in­deed the ex­clu­sive prov­ince of the ex­ec­u­tive branch. But no such bal­anc­ing was nec­es­sary be­fore putting al-awlaki on the kill list months be­fore. Whether he be­longed on the list — whether, in other words, there was suf­fi­cient ev­i­dence to de­ter­mine that he was, in fact, a ter­ror­ist — is a quintessen­tially ju­di­cial ques­tion, which eas­ily could have been aired in court.

In his speech, Mr. Holder re­lied on Ex Parte Quirin, a World War II case in which the Supreme Court said that “cit­i­zen­ship in the United States of an en­emy bel­liger­ent does not re­lieve him from the con­se­quences of a bel­ligerency which is un­law­ful be­cause in vi­o­la­tion of the law of war.” That may or may not be right; as Jus­tice An­tonin Scalia says, Ex Parte Quirin “was not the court’s finest hour.” But in any case, the Ex Parte Quirin for­mu­la­tion begs the ques­tion of due process. A proven en­emy bel­liger­ent may in­deed for­feit cer­tain rights, but the log­i­cally prior ques­tion — the ques­tion on which ju­di­cial process is due — is whether the tar­get is, in fact, an en­emy bel­liger­ent.

The duty now falls to Congress to ad­dress this con­sti­tu­tional prob­lem. Congress should pro­vide for ju­di­cial re­view of any ex­ec­u­tive decision to tar­get and kill a U.S. cit­i­zen. Leg­is­la­tion should, of course, spec­ify a sig­nif­i­cant level of def­er­ence to the ex­ec­u­tive branch. And it should be the For­eign In­tel­li­gence Sur­veil­lance Court, which is ex­pert in guard­ing clas­si­fied and sen­si­tive in­for­ma­tion, that is given ju­ris­dic­tion to is­sue such war­rants. This so­lu­tion would pro­tect our na­tional se­cu­rity and pro­tect our Con­sti­tu­tion.


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