The President’s Authority to Kill

It is a rare occurrence when the New York Times and John E. Sununu agree. (Mr. Sununu is a Republican and former U.S. Senator from New Hampshire.) But they did agree on one thing—the lameness of Attorney General Eric Holder’s untenable defense of exclusive executive authority to determine when American citizens can be targeted for killing. (See NYT Editorial, “The Power to Kill,” Mar. 11th,  http://www.nytimes.com/2012/03/11/opinion/sunday/the-power-to-kill.html?scp=1&sq=the%20power%20to%20kill&st=cse  and Sununu’s column, “Death, by order of your president,” Mar. 19th, http://articles.boston.com/2012-03-19/opinion/31205637_1_habeas-corpus-judicial-review-eric-holder .) As Mr. Sununu correctly points out, “The gist of [Holder’s] message was this: If you are a US citizen, the president of the United States can issue an order to have you killed without review or approval from any other branch of government. No president has ever asserted such authority. This administration has already acted upon it.”

Both articles point out that Mr. Holder’s position places the exclusive authority to determine who should be killed in the hands of the executive branch—headed by the President of the United States. Accordingly, the killing by a drone strike on Sept. 30, 2011, of Anwar al-Awlaki, an American-born member of al Qaeda, and the subsequent and little publicized killing of his 16-year-old son two weeks later, were justifiable, according to Mr. Holder, on the grounds that the President has the authority to decide. The concept of due process, that necessarily would involve some form of judicial proceeding before anyone is executed, has been discarded.

It is one thing to kill on the battlefield, where the conflicting sides are shooting at each other, and no one really knows the personal identities of those shooting from the other side. It is another thing to declare that an organization is the enemy, to identify its members, and to kill them, whether they are armed or not, from a drone flying high in the sky. Ever since the former President, George W. Bush, declared that al Qaeda was the enemy, that they were terrorists, and that we are in a war against terrorism, the distinction between these two scenarios has been blurred. First, President Bush declares that there is such a war on terrorism, and second, both Mr. Bush and President Obama act as though such a war is the same as fighting on the battlefield, so that the President’s authority is the same in both instances. Congress has essentially supported this view. We are now at the point where the President can determine who is a terrorist, whether or not the terrorist should be killed, and order the killing. The only restrictions on this power are restrictions determined by the executive branch—i.e., the President.

The authority that Mr. Holder claims is not in the United States Constitution, and Mr. Holder did not even assert that it is. Article II of the Constitution sets forth the powers of the executive branch, powers that “shall be vested in a President of the United States of America” (Art. II, Section 1, 1). It states, “The President shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States . . . and he shall have the power to grant reprieves and pardons for offenses against the United States. . . (Art. II, Section 2,1).  The Constitution does not provide for executive authority to execute and assassinate whomever the executive branch determines should be killed. (Also see my previous post, “Why Aren’t Drone Killings Human Rights Violations?”)

There is little to distinguish the authority claimed by Mr. Holder from that exercised by the world’s worst dictators. We may be looking, frankly, at the approaching death of democracy and human rights in the United States.  Human rights provide the legal backbone of democracy. Protection of human rights requires an independent judiciary. Mr. Holder’s position dispenses with the judiciary. That this flaunting of democratic principles is coming from a Democratic administration bodes ill for the nation. A Republican administration would make matters worse. (See my post of Jan. 23, 2012, “What is the Opposite Direction From Republicanism?”)

To discourage such national departures from established principles of human rights, there need to be international protectors of human rights that are strong enough to challenge national prerogatives. (A good source for international documents is the Meiklejohn Civil Liberties Institute, http://www.mcli.org .) In the meantime, only an active and concerned public can change the unfortunate direction this country is taking in the name of defense.

Although the New York Times and Mr. Sununu agree on this issue, both limit their criticism of Mr. Holder’s views to the killing of U.S. citizens. Neither seek to explain why it matters whether the target is a U.S. citizen or not. Can human rights apply only to U.S. citizens and not to others? The distinction makes no sense. Either we, as human beings, have equal rights or we do not. The very distinction between rights belonging to citizens and rights belonging to others undermines the ethical foundation of democracy—the fundamental equality of all people.