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.

Why Aren’t Drone Killings Human Rights Violations?

A widely published Associated Press article by Sebastian Abbot attempts to make the case that few civilians have been killed by U.S. drones (e.g., “Most killed by US drones are militants, study finds,” Boston Globe, Feb. 26, 2012, p. A3). (Click here to see the article printed elsewhere.) The same article establishes that many civilians have been killed by drones in Pakistan. Since about 70% of those killed were “militants,” according to the article, that means about 30% were civilians. According to the article’s numbers, about 56 civilians or other non-militants have been killed by U.S. drones in Pakistan.

Imagine the international outcry if these killings had occurred in England, or Germany, or the U.S. Pakistan is not a war zone. Are Pakistani civilian lives considered to be of less importance that the lives of Europeans or Americans? Why is there no international outcry, or outcry within the U.S., that 56 innocent Pakistanis have been killed by U.S. drones?

The other 138 people killed were “militants.” And who are the “militants”? What is a “militant”? Is a “militant” the same as a “terrorist.” What is the difference between a “militant” and a “terrorist” or a “dissident”? When terms like “militant” and “terrorist” are vaguely defined, if defined at all, they become subject to creeping expansion to include more and more people. When an attack kills many, it is in the interest of the attacker to define “militant” and “terrorist” as broadly as possible to minimize the number of “civilian” deaths. No one has conclusively determined that all of the “militants” who died were proper targets.

These killings reflect complete disregard of the role of the judiciary. The purpose of judicial procedures is to determine guilt or innocence. It is the judiciary that is charged with enforcing the rights of the accused. Without an independent judiciary, human rights is an empty concept that cannot be implemented. When the policing body and the prosecutor can freely kill those suspected of criminal acts, the judiciary becomes irrelevant. These drone killings did not take place in the heat of battle or on a battlefield. They were premeditated. The non-civilian victims may or may not have been armed, but even if armed, they were defenseless against a drone high in the sky. These killings were not shootouts between the police and suspected criminals. No attempt was made to capture the targets alive and bring them to trial.

In these government-sponsored killings, there was no “due process of law” as envisioned by the Fifth Amendment, or a right to trial as a required by the Sixth Amendment. These provisions in the U.S. Constitution—in the Bill of Rights—state very fundamental principles of human rights. As a technical legal matter, they were not applicable. But from an ethical standpoint, these rights apply to all people everywhere in the world. They are recognized internationally as fundamental human rights.

What kind of example is the U.S. providing to the world? Just as nuclear technology spread beyond the U.S. to other nations, so will drone technology spread to other nations, including tyrannical ones. Under the regimes of these tyrannical nations, there is no difference between a terrorist and a militant, between a militant and a dissident, or between a dissident and the opposition. These regimes will use drone technology to kill the opposition. The model for this approach is being provided now by the U.S. It is the wrong model.