The President As Executioner; the Unconstitutionality of Targeted Killings of Americans on American Soil
By R. Tamara de Silva
March 6, 2013
In the 2004 decision of Hamdi v. Rumsfeld, the Supreme Court of the United States reminded President George W. Bush's administration that, "we are heirs to a tradition given voice over 800 years ago" by the signing of the Magna Carta and the idea insisted upon by the barons to their king, that his power and that of any subsequent executive would be confined to the rule of the law. America was founded on this one idea above any other-that we are a country ruled by law as opposed to the historical alternative we had determined to get away from-the rule of men, unanswerable to law and capable of wielding power that would never be unchecked and therefore in its application, absolute. So it was that American began-in a deeply held commitment to avoid tyranny. A fair part of this stubborn legacy was set aside yesterday by Attorney General Eric Holder in a letter, which was released in answer to Senator Rand Paul's questions about the Administration's nominee for director of the Central Intelligence Agency, John Brennan. Mr. Holder's letter dated March 4, 2005 stated that while very unlikely, the President, after conferring with him, could kill an American citizen by drone even within the United States if he thought he must.
Mr. Holder's letter clarifies the White House's position on the extra-judicial killing of Americans contained in what has come to be called, the Drone Memo. I have written more extensively about what the Drone Memo means here. The import of the Drone Memo is that a high ranking official of the Executive Branch can now kill an American if he deems that American a "continuing threat to the country." No actual evidence prior to killing is deemed necessary by the Drone Memo. In fact, there need not be an imminent threat to the United States nor even, "clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."
What Mr. Holder's letter states is that it is within the sole power of the President to kill Americans on American soil, without providing them a trial, a jury, any due process, notice, or their death justified by the existence of any concrete and articulated standard.
This is unconstitutional for many reasons, foremost among which is that the Fourth and Fifth Amendments exist... the seeming unwillingness of Congress to exercise its Constitutionally mandated duty to serve as check on the Executive and prevent Executive overreach, especially when it comes to matters as monumental as taking American lives, is another matter entirely. The Drone Memo makes it clear that the Executive Branch does not need to have clear evidence of an imminent threat or any evidence of imminent harm to make a targeted killing of an American-this plainly violates the Fourth Amendment's guarantee of protection against unreasonable searches and seizures. The Fifth Amendment grants upon all Americans the right not to be deprived of life or liberty without due process of law. No notice of warning is given to an American before they can be killed according to the Drone Memo-again violating the Fifth Amendment's due process clause.
Article I, Section 9, Clause 3 of the United States Constitution also prohibits the federal government from passing bills of attainder-this is alternately termed the Bill of Attainder clause. This was put into the Constitution to prevent the federal government, as had been the practice in common law, from passing a law or act stating that a certain person would be executed because they were deemed by their government to have committed treason. The founding fathers wanted to ensure that in America, there would never be the equivalent of the English Law of Treason whereby the state or a tyrannous legislature would dispose of a dissenter or critic by declaring them an enemy of the sovereign-without trial or hearing. There are only two civil liberties that are protected in the Constitution against infringement by the federal government and the state governments, liberty against ex post facto laws and bills of attainder.
The United States Supreme Court has viewed the Bill of Attainder clause as an important separation of powers issue-one that prohibits legislative acts that affect the life or property of an American and call for punishment without a judicial trial. James Madison in Federalist No. 44 wrote that, "Bills of attainder, ex post facto laws and laws impairing the obligation of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation."
Concocting Executive due process
Attorney General Eric Holder had set the stage for making an end run around the Constitution last year when he invented, absent even the most gossamer thread of Constitutional authority, something called "Executive Due Process." On March 5, 2012, he delivered a speech at Northwestern University Law School where he declared that the Constitution's guarantee of due process does not necessarily mean judicial due process (actually it does)-that it now can mean something called Executive due process. Mr. Holder said that for a President to now deprive an American of life or liberty, that American did not first have to be provided with due process of law, the President just had to check with his Attorney General first. That checking, according to Mr. Holder, constitutes due process.
Unchecked power allows for abuse and in its worst iteration, tyranny. Getting away from unchecked Executive power was to a large extent, the impetus behind the American experiment. Mr. Holder would have the few bulwarks against pernicious law enforcement and illegal prosecution like trial by law, a jury, the right to counsel, the right to confront witnesses against you all supplanted by two men conferring about another, with no check on whether either of them could be in error or have any reason to be less than objective in deciding whether an American will be killed. Mr. Holder's reassurances about the use of targeted killings through Executive due process are well intentioned and reassuring but they are not checks and balances against the potential misuse of an extraordinarily terrifying power.
Under the Constitution, no authority has ever been given to the Executive Branch to kill an American without due process of law, unchecked, unquestioned and unanswerable to any other branch of government. Our system of government was intended to be established so that we would never find ourselves having to rely on the good nature of one or two men. We are heirs to the Magna Carta because we instituted a government of checks and balances designed to guard against overreach by any one branch of government and to preserve the rule of law-not blind faith in a handful of men. Our system of government was established on far more substantial foundations. The ability to authorize targeted killings unchecked by any independent overseer, invites an abuse that is counter to our way of government-it is quintessentially, un-American.
Authorization for Use of Military Force
What is the source of the President's newly stated authority to kill Americans? Congress passed the Authorization for Use of Military Force against Terrorists ("AUMF") in the wake of 9-11. The AUMF has been invoked as the source of authority for the President to use targeted killings in other nations. Pursuant to the AUMF, the President is authorized to use "all necessary and proper force" against those "he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." What is unclear is how this act provides the President authority to kill Americans suspected of terrorism who have nothing to do with 9-11--a premise of the act itself that circumscribes its application?
This becomes a critical question because the government's definition of "associated forces" has never been defined. What is worse, we invite the very possibility for abuse, which the Constitution's Bill of Attainder clause was designed to prevent--a shifting definition of terrorism. This does not seem an impossible scenario if you consider a study funded by the Department of Homeland Security entitled, "Hot Spots of Terrorism and Other Crimes in the United States, 1970-2008," which found that terrorists were people, "reverent of individual liberty...suspicious of centralized federal authority or anti-government." This definition would include so many engaging people I know and respect specifically for their outspoken views on politics and their government.
Article II Section II of the Constitution names the President as Commander-in-Chief of the armed forces. This section vests the Office of the President with powers over the military that are to be shared with Congress-the degree of sharing has historically varied with Congress latterly taking a turn for the lackadaisical. In the case of Al-Aulaqi v. Panetta, civil rights groups including the ACLU, filed suit against the government for the killings of United States citizens Al-Aulaqi, Samir Khan and the 16-year-old Abdulrahman Al-Aulaqi who were killed under President Obama's program of targeted killings in Yemen. In their briefings, the government stated that its authority to kill Americans abroad stemmed from the AUMF and more broadly, the President's war powers under Article II Section II.
In their analysis, the government pointed out that the Supreme Court has permitted the use of lethal force in domestic law enforcement settings where a suspect poses a serious threat of physical injury to police officers. The problems with using the law enforcement model for killings by drone in Yemen are numerous but I do not have to cover them because in the Drone Memo released on February 5, 2013, the Department of Justice stated that it found the President able to kill Americans even if there was no imminent threat of harm posed to the United States or evidence of a prospective harm.
Why not simply send the Judiciary packing now? Admittedly their inscrutability, when at times so much seems to rest on them-is likely irksome. According to Mr. Holder that other branch does not have a say in the matter of targeted killings anyhow. But before you toss your copy of the Constitution with the debris of the spring's cleaning, take heart- I doubt these newfound and self-granted extra-Constitutional powers will survive judicial review. And last I checked, no executive order had been directed at Marbury v. Madison.
The Supreme Court made it clear to the Bush administration in Hamdi v. Rumsfeld that the War on Terror did not give the Executive Branch a blank check to violate the separation of powers doctrine or due process, "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." It is simply not as simple as Mr. Holder's letter or memo would suggest.@
R. Tamara de Silva
March 6, 2013
 See Fletcher v. Peck (1810), United States v. Brown (1965) and Marbury v. Madison (1803)
 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified at 50 U.S.C. § 1541 note (2006))
 Hamdi v. Rumsfeld, 542 U.S. 507, 5
Senator Rand Paul holds a filibuster against John Brennan on Senate floor. While he will not ultimately prevail, he remains committed to principle that the Constitution prohibits the President from assassinating Americans on American soil without any due process of law.