The Obama drone policy is unconstitutional

In the wake of the release of Justice Department “white paper” outlining the Obama administration’s decree that the assassination of a U.S. citizen would be lawful if the target posed an “imminent threat” to the United States, here is an essay I wrote last year regarding this same issue after the assassination of Anwar al-Awlaki. I conclude that the assassination of U.S. citizens is unconstitutional.

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In April 2010, Anwar al-Awlaki, the radical Muslim cleric — and also an American citizen — was placed on a government list of people authorized for assassination by the Central Intelligence Agency, the first time this ignominious honor has ever been placed on an American citizen. Born in New Mexico, Awlaki has been tied to two terrorists involved in the September 11 terrorist attacks, Maj. Nidal Hasan, the radical Muslim army psychiatrist who killed 13 Americans at Fort Hood, Tex., and Umar Farouk Abdulmutallab, the so-called underwear bomber, as well as attempting to incite terror via his online sermons, speeches, essays, and covert activities in Yemen. Despite this, his father asserted that Awlaki was not the terrorist the government portrayed him to be, and challenged the government’s reasoning in court. Presiding Judge John Bates, however, dismissed the suit, claiming that his father lacked standing, and that the government’s decision to order the assassination of terrorist targets was a “political question” that is the purview of elected officials, not unelected judges. However, Bates also did acknowledge that the government’s actions raised “stark, and perplexing, questions,” such as whether the government could “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization.”

The “stark, and perplexing, questions” soon had to face reality, as Awlaki, along with another American citizen who edited al-Qaeda’s online jihadist magazine, was killed by a drone missile in Yemen on September 30. A full-blown legal controversy emerged, as legal scholars, political observers, and laymen contemplated the ramifications that went with a government being allowed to kill a citizen without a trial. The question at issue is this: What are the president’s powers in foreign affairs, and is it constitutional to order the killing of a United States citizen?

The Articles of Confederation, the constitution of the United States during the Revolutionary War, proved inadequate for many of the time because it did not give the national government enough power. It provided for no executive, no judiciary, and no national taxing power. Thus, the framers met in Philadelphia under the auspices of offering new amendments that would strengthen the Articles. Instead, a full-fledged governing document to be ratified by the states came out of those deliberations. The U.S. Constitution increased the power of the federal government, but the framers still outlined many limits: “The powers delegated by the proposed Constitution to the federal government are few and defined,” wrote James Madison in Federalist No. 45. “Those which are to remain in the State governments are numerous and indefinite.”[1]

Regarding presidential war power, the Constitution was even more ambiguous. The Constitution names the president as the commander in chief of the army and navy and gives him the power to make treaties and appoint ministers. But it gave Congress the power to declare war. What did it all mean? What was the president’s power in wartime? Early on, it wasn’t much. Even Alexander Hamilton, the leading proponent of a strong central government of his time, conceded at the Constitutional Convention that “the Legislature alone” can “place the nation in a state of war,” and, by extension, that the president’s commander-in-chief authority only involved “war when authorized or begun.”[2] In Federalist No. 4, John Jay warned against an all-powerful executive waging war, saying they will “make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.”[3]

However, the framers seemed to admit that there may be emergency powers in wartime that aren’t necessarily enumerated in the Constitution. “It is in vain to oppose constitutional barriers to the impulse of self-preservation,” James Madison argued in Federalist No. 41.[4] Alexander Hamilton even directly circumvented his contention during the Constitutional Convention in Federalist No. 23, saying that the president’s war powers “ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.”[5]

From this has emerged the theory of the “two presidencies.” In the domestic sphere, the president is extremely limited — though increasingly less so since the ascendancy of Franklin Delano Roosevelt — by the American system. Federalism, separation of powers, and constitutional protections for the rights of Americans all limit the president’s power to act according to his whim. Indeed, the frustration of many American presidents over their lack of ability to “get things done” is palpable: It is much harder to pass laws when the proposed legislation must go through the cumbersome process of attaining a majority vote from both houses of Congress, much less the other more tedious constitutional hoops it must jump through, than by dictatorial fiat. In foreign affairs, however, even the framers foresaw the need for executive freedom in doing the first duty the Preamble to the U.S. Constitution ascribes as to the government: provide for the common defense.

This is the view that has more or less been shared by the United States government since the founding. Most chief executives, when faced with perilous situations, have acted when it is deemed necessary for “self-preservation.” “The history of the presidency is a history of aggrandizement,” says Edward Corwin, “but the story is a highly discontinuous one. That is to say, what the presidency is at any particular moment depends in important measure on who is the President.”[6] Thomas Jefferson went against his agrarian, anti-Federalist instincts when he purchased the Louisiana Territory from France without expressed constitutional authority to do so. Abraham Lincoln took many drastic measures during the Civil War not explicitly revealed in the constitution — suspension of habeus corpus (the Constitution gives that prerogative to Congress), blockade of southern ports, and trying American citizens in military tribunals — but took these drastic measures precisely because the country was in drastic times. “Was it possible to lose the nation, and yet preserve the constitution?” Lincoln asked. “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”[7] There wouldn’t be a constitution if there were no nation for it to provide the rules for.

In the modern period, presidential war powers have accelerated. In World War II, Franklin Roosevelt exercised the power to intern American citizens of Japanese descent, with the full stamp of approval from the Supreme Court. “There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short,” Justice Hugo Black said in his opinion for the majority. “We cannot — by availing ourselves of the calm perspective of hindsight — now say that at that time these actions were unjustified.”[8] During the Korean War, Harry Truman attempted to seize steel mills, and during the Vietnam War, Richard Nixon tried to stop publication of the damning Pentagon Papers (though, in both of these cases, the Supreme Court decided against the president).

What, then, are the president’s powers with regards to foreign affairs? And does he have the power to kill an American citizen without a trial if that citizen is tied to terrorist activities? Clearly, he is more powerful then than in the domestic sphere. David O’Brien, professor of government and foreign affairs at the University of Virginia, writes, “In the domestic area, claims to inherent presidential power are usually limited and sharply criticized, whereas Congress and the Court generally acknowledge presidential dominance in foreign affairs.”[9] These powers can be very broad in scope. In the 1936 case United States v. Curtiss-Wright Corporation, the Court ruled that the president’s powers in the realm of foreign affairs are much broader than those regarding domestic affairs. “The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution,” Justice George Sutherland argued in his opinion for the Court, “and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.”[10] Regarding foreign affairs, all the traditional powers a sovereign nation claims, such as the ability to wage war, make peace, and maintain diplomatic relations, would even be true had they not been explicitly written in the Constitution. The president has the discretion to use legislation in the way he sees fit.

This has been the opinion of the Court since its inception. In defending the Adams administration’s decision to extradite a fugitive under the Jay Treaty, John Marshall argued, “The President is the sole organ in its external relations, and its sole representative with foreign nations.”[11] The Court invoked this principle in its 1942 decision in United States v. Pink, ruling that states may not interfere with the federal government’s actions as a sovereign nation with respect to foreign affairs. Writing for the majority, Justice William O. Douglas argued, “If state laws and policies did not yield before the exercise of the external powers of the United States, then our foreign policy might be thwarted… It would tend to disturb that equilibrium in our foreign relations which the political departments of our national government has diligently endeavored to establish.”[12]

However, since the beginning of the Iraq War, certain actions the president has taken have been deemed unconstitutional by a Court unwilling to accede to the executive any power it wants. In Rasul v. Bush in 2004, the Court ruled that citizens of countries with which the United States is not at war have a right to habeus corpus. In Hamdi v. Rumsfeld, also from 2004, the Court ruled that the government must allow a U.S. citizen taken prisoner as an “enemy combatant” to defend himself in court. “While the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting,” Justice Sandra Day O’Connor wrote for the majority, “the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.”[13]

These two cases naturally lead into the Awlaki case. In both cases, extraordinary rights are given to both U.S. and non-U.S. citizens who are considered terrorists. This seems to fly in the face of the government’s claim that its actions in killing Awlaki were constitutional. But to understand the government’s actions, one must understand the government’s motives. For it did not decide upon this course of action for want of options. Its most legally sound option was that of trying Awlaki for treason. The Constitution is not silent on the issue; in fact, the framers were all too familiar with treason, as they knew full well they were committing it against the British Crown. “Treason against the United States,” the Constitution says, “shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” This explains why the Obama administration was loath to take this route — it is incredibly difficult to convict a citizen of treason. That person must be proven to have been overtly levying war against the United States or aiding its enemies, with the testimony of two witnesses. It would have been extraordinarily difficult for the administration to obtain this testimony about Awlaki, which made this legal route unattractive, leaving assassination as the alternative.

However, it seems, based on Supreme Court precedent, that the wanton targeting and killing of a U.S. citizen is unconstitutional. In Hamdi, the Court ruled that a U.S. citizen — any U.S. citizen — has a core right to a court of law, which supersedes any argument of inconvenience or inefficiency by the government. Awlaki may indeed have been a terrorist waging overt war with the United States, and the United States government has the duty to protect and defend its people, as well as to uphold the nation’s honor. As such, the government has broad powers with respect to the foreign sphere, and these powers were put on spectacular display when Osama bin Laden, the perpetrator behind the 9/11 attacks, was assassinated earlier this year. The U.S. has the responsibility to catch these terrorists who decide it their duty from God to murder Americans. Justice requires that these men be punished.

However, the president’s power in foreign affairs conflicts with his power in the domestic sphere when a U.S. citizen is involved. It is not so far-fetched to believe that in the future, a man only tied to terrorist organizations, and not explicitly carrying out or planning terrorist activities, could be targeted and assassinated by the government. This appears to directly contradict the letter and intent of the Constitution, which was written to protect American citizens’ liberties, among them, as the Jefferson in the Declaration of Independence put it, life, liberty, and the pursuit of happiness. It is not by accident that the first of these is life.

While the adage those who would sacrifice liberty for security deserve neither is not a truism — if man were desperate enough, he would in fact take security over liberty — the situation is not dangerous enough, and there are plausible options for the government outside of assassination. For these reasons, it is unconstitutional for the United States government to order the assassination of an American citizen without due process. He must be allowed to defend himself in a court of law.

  


[1] Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. Ed. Clinton Rossiter. New York, NY: Mentor, 1999. 260.

[2] Woods, Thomas E., and Kevin R. C. Gutzman. Who Killed the Constitution?: The Fate of American Liberty from World War I to George W. Bush. New York: Crown Forum, 2008. 168.

[3] Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. Ed. Clinton Rossiter. New York, NY: Mentor, 1999. 14.

[4] Ibid. 225.

[5] Ibid. 121.

[6] O’Brien, David M. Constitutional Law and Politics: Struggles for Power and Governmental Accountability. New York: W.W. Norton &, 2008. 233.

[7] Ibid. 234.

[8] Ibid. 288-289.

[9] Ibid. 235.

[10] Ibid. 242.

[11] Ibid. 239.

[12] Ibid. 258-259.

[13] Ibid. 307.

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