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A Law unto Himself

by Jacob Sullum

The alarming scope of the power President Obama claims

Toward the end of the February 7 confirmation hearing for CIA director John Brennan, Senator Jay Rockefeller praised the nominee’s performance. “I’ve been through a whole lot of confirmation hearings in 28 years here,” the West Virginia Democrat said, “and I quite honestly do not recall anybody who was more forthright, more direct, more accommodating.”

Sad if true, because Brennan’s testimony was anything but forthright, especially on the subject of the president’s purported power to order the deaths of suspected terrorists. Consider Brennan’s response when Senator Ron Wyden asked what “needs to be done to ensure that members of the public understand more about when the government thinks it’s allowed to kill them.” The Oregon Democrat focused on two issues: how much evidence is required to conclude that someone is eligible for death by drone, and whether the president’s license to kill is valid within the United States. “What we need to do,” Brennan replied, “is optimize transparency on these issues but at the same time optimize secrecy and the protection of our national security.”

It is this kind of maddening evasiveness that provoked the filibuster staged by Senator Rand Paul a month later. The Kentucky Republican refused to let Brennan’s confirmation proceed until the Obama administration deigned to address his questions about its “targeted killing” program. Although the response he finally elicited from Attorney General Eric Holder left many issues unresolved, the episode called much-needed public attention to President Obama’s startling claim that he has the authority to kill people he unilaterally identifies as America’s enemies.

In letters to Brennan, Paul posed dozens of questions about targeted killings, including requests for basic information such as the number of countries where they have occurred. But in the March 7 letter to Paul that the senator cited when he declared “victory” and ended his filibuster, Holder chose to answer just one of those questions: “Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” Holder said, “The answer to that question is no.”

It is a measure of how slippery the administration has been in dealing with this issue that White House press secretary Jay Carney felt it necessary to clarify that “the issue here isn’t the technology,” because “whether the lethal force in question is a drone strike or a gunshot, the law and the Constitution apply in the same way.” Carney did not address the question of whether American citizenship is a prerequisite for protection against summary execution in the United States — a claim that would be hard to defend, since the Fifth Amendment says “no person” shall be “deprived of life, liberty, or property, without due process of law.” Nor did he explain what it means to be “engaged in combat.” For good reason, it turns out. The Obama administration maintains that individuals it identifies as members or allies of al-Qaeda are engaged in combat even when they are driving down the street or sitting in their homes, far from any active battlefield. So “engaged in combat” is not the same as “posing an imminent threat.”

Neither is “posing an imminent threat” the same as posing an imminent threat, according to the leaked Justice Department white paper on targeted killings that was published by NBC News in February. The white paper describes circumstances in which “it would be lawful for the United States to conduct a lethal operation outside the United States against a U.S. citizen who is a senior, operational leader of al-Qa’ida or an associated force of al-Qa’ida.” One condition: “An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” But as the paper goes on to explain, “the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Another condition mentioned by the white paper is that “capture is infeasible.” But infeasibility hinges on an undefined “window of opportunity” — a puzzling concept in the absence of a truly imminent threat. And while the inability to obtain consent from the country where the target is located renders capture “infeasible,” it apparently poses no obstacle to execution by drone. The white paper says “a lethal operation in a foreign country would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation’s government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.” In other words, firing missiles at a suspected terrorist is permissible under international law only if the host nation’s government (1) agrees to allow the attack or (2) refuses to allow the attack.

You might think the requirement that capture be infeasible would rule out targeted killings within the United States, except that it’s not really a requirement. As the Justice Department emphasizes, “this paper does not attempt to determine the minimum requirements necessary to render such an operation lawful, nor does it assess what might be required to render a lethal operation against a U.S. citizen lawful in other circumstances.” Furthermore, the paper acknowledges no geographic limit on lethal strikes, and it explicitly rejects the notion that they should be restricted to “the zone of active hostilities.”

This is the context in which critics such as Wyden and Paul began asking about targeted killings on U.S. soil. In response to those questions, the administration could simply have stated that the government cannot legally use lethal force against a suspected terrorist within the United States — regardless of his nationality — unless doing so is necessary to prevent him from killing innocent people. But that is not what the president or his underlings said.

After Brennan’s confirmation hearing, the Senate Select Committee on Intelligence gave him another chance to answer a question he had ducked: “Could the Administration carry out drone strikes inside the United States?” Brennan’s written response: “This Administration has not carried out drone strikes inside the United States and has no intention of doing so.” Asked whether “drone strikes” are “allowed with citizens within the United States” during an online Q&A session on February 14, Obama said, “There has never been a drone used on an American citizen on American soil.” In a March 4 letter to Paul, Holder likewise declared that “the U.S. government has not carried out drone strikes in the United States and has no intention of doing so.”

In short, when asked how far Obama is legally allowed to go in killing suspected terrorists, his administration has responded, again and again, with a description of what he so far has chosen to do. The administration’s evasiveness reached comical heights at a Senate Judiciary Committee hearing on March 6. Responding to questions from Senator Ted Cruz (R., Texas), Holder repeatedly refused to say whether it would be constitutional to use lethal force against a suspected terrorist in the U.S. who is not carrying out an attack but is merely “sitting in a café” or “walking down a pathway.” Holder conceded only that it would not be “appropriate.” Finally, after Cruz had given up on getting a straight answer, Holder said, “Translate my ‘appropriate’ to no. I thought I was saying no.” That counts as the administration’s clearest response to date.

While the prospect of dropping a bomb on a suspected terrorist at a Starbucks in Dearborn may seem fanciful, it dramatizes the central issue raised by Obama’s targeted killings: Does the president have the authority to order hits on people he deems to be enemy combatants? The Justice Department’s white paper describes death by drone as an “act of national self-defense,” part of an “armed conflict” with al-Qaeda and its allies. Yet the white paper also speaks of “due process” for American citizens condemned to death by the president, a requirement it says can be met through secret discussions within the executive branch. This contradiction, combining the rules of the battlefield with the rules of the courtroom, makes a muddle of both.

By saying that due process applies to drone strikes on suspected terrorists in places such as Pakistan and Yemen, the Obama administration implicitly concedes that such operations are fundamentally different from shooting an enemy soldier during a battle. In the latter case, both the identity of the enemy and the threat he poses are clear, and so is the argument for self-defense. When it comes to people marked for death by “an informed, high-level official,” however, all of those issues may be matters of dispute.

In an interview with CNN last September, Obama claimed that the procedures for identifying people subject to summary execution by drone, although confined to the executive branch, are “extensive” enough to comply with “our traditions of rule of law and due process.” Five months later, the president admitted that “it’s not sufficient for citizens to just take my word for it that we’re doing the right thing.” Rand Paul surely agrees.

– Mr. Sullum is a senior editor of Reason and a nationally syndicated columnist.

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