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.
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. Continue reading