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Last week, new details concerning President Obama’s already controversial “kill list” were released to the public. The New York Times broke the story on the kill list in May, and detailed how the president has the ability to personally authorize drone strikes on terrorists and U.S. citizens aiding terrorists, effectively bypassing due process rights in the latter case. These drone strikes have been conducted with and without the consent of the governments of the countries where the strikes have taken place. A new “disposition matrix” component has been revealed, which contains a list of names, along with last known locations and associations, and a full listing of the resources that can be committed to “dispose” of these high-value targets wherever they are.
First of all, it is very difficult to see how this use of presidential power can be justified by the administration since it is clearly not constitutional. In Article II of the Constitution, the only power the president is given to kill people is indirect, via the military in the role of commander in chief of the armed forces. The deployment of the armed forces must also include a declaration of war from Congress. The president has never in any way been given the ability to lawfully pick and choose who to terminate from a prepared list of perceived threats to the country, whether using the military or using civilian government agencies.
However, the War Powers Resolution passed in 1973 gives the president the power to deploy the military unilaterally, with a clearly delineated time limit, in the case of a “national emergency created by attack upon the United States, its territories or possessions, or its armed forces” when waiting to seek congressional approval for deployment would be too costly in terms of American lives. Clearly, the kill list and drone strikes could not fall under this established extraconstitutional framework. A single terrorist thousands of miles away who hasn’t yet done anything to the United States is outside of the resolution’s scope. The kill list is essentially a corollary to the well-known pre-emptive strike doctrine, but extended to the individual level.
Some may say that the president is justified in expanding executive power in this way. After all, the president is the commander in chief via the Constitution, and the authorization of drone strikes could be in some way construed as commanding the armed forces to combat threats to America. The main problem with this rationalization is that CIA drones are used in these operations, and the CIA is a civilian government agency the president has no constitutional command over.
To counter that technicality, some may point to the broader idea that the president has the responsibility to keep Americans safe, and that should be all the explanation needed for the kill list.
While it’s hard to argue with the idea that the government should be active in protecting its citizens, why must the president alone have the power to decide who to kill and whether to authorize drone strikes? Why can’t the job be left to the regular military?
After all, in times of war, though the president is the commander in chief and makes the major decisions, it is the military generals who plan and direct the specifics of actual operations.
Yes, soldiers’ lives are spared by the use of CIA drones. Once again, this point is hard to argue against. But at the same time, the kill list and authorization of drone strikes could easily be handed over to the CIA alone, without any presidential involvement, gaining the same lifesaving results for our military, and the same life-ending results for our enemies, but sparing the Constitution. This of course ignores the other problem that the CIA is a civilian agency, and while its agents are allowed to use deadly force to protect themselves, they are still civilians. They are subject to federal laws for civilians against murder, and are not legally allowed to project that deadly force. That is the military’s job.
Some might also argue in favor of drone strikes on American citizens working with terrorists, given the fact that these Americans chose to aid those who seek the destruction of America.
They are traitors and do not deserve their constitutional rights, and the president is justified in eliminating these threats to the rest of us wherever and whenever they may occur.
However, the problem remains that these drone strikes are essentially summary executions in violation of due process. How can the government deny constitutional rights to U.S. citizens so blatantly? Regardless of the extremely thorny constitutional ground this argument leads to, I ask: Even if we could agree that the deprivation of due process is justified in this case, how could we rationalize allowing only one person to determine whether such a deprivation is justified?
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Essentially, the kill list and disposition matrix should be matters of great concern for all American citizens. The fact remains that the president has greatly expanded executive power in an alarming manner. This expansion is one that, at best, is overzealous in its pursuit of Americans’ safety by having unnecessary direct presidential involvement in terminating perceived threats. At worst, it is essentially the power of summary execution of U.S. citizens anywhere in the world and a violation of federal law and the Constitution on several other counts, all in the name of national security. This is hardly “compatible with our values,” as the president has said to try to justify his actions, because our values include a respect for the rule of law and the Constitution.
