HESSLER: Presidential power to kill?

Obama’s assassination orders deface Constitution

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For the first time, President Obama’s Justice Department has attempted to explain the administration’s policy on targeted killings of U.S. citizens. Attorney General Eric H. Holder Jr.’s speech earlier this month came five months after an American citizen, Anwar al-Awlaki, was killed in Yemen by a predator drone without any judicial review. The president’s decision to target and kill an American citizen, far from any battlefield, presents one of the gravest constitutional issues we have faced in the war on terror. The Justice Department’s defense of unchecked power to kill U.S. citizens raises significant constitutional concerns.

The Fifth Amendment protects all citizens from being “deprived of life, liberty, or property without due process of law.” Mr. Holder claims due process was provided, in that the executive branch conducted a “thorough and careful review.” He asserts that ” ‘due process’ and ‘judicial process’ are not one and the same.” But he is quite wrong. Due process must be judicial process unless Congress specifies otherwise.

The due process clause, like most of the Bill of Rights, is essentially a separation-of-powers provision. Our Founders understood due process as a judicial function designed to serve as a check on presidential power. As Alexander Hamilton explained, “the words ‘due process’ have a precise technical import, and are only applicable to the proceedings of courts of justice.” In other words, the Constitution contemplates that the president may deprive citizens of life, liberty and property - but the check on this power is that he may do so only if there has been a judicial process to approve his actions. Article II provides: “The executive power shall be vested in a President.” And because the Constitution creates a unitary executive, vesting all executive power in a single person, it follows that an intraexecutive check on executive power is really no check. Unreviewable and unchecked presidential power is inconsistent with our system’s fundamental separation of powers.

The Supreme Court has affirmed the judiciary’s role as a check on presidential power in the war on terror. In Hamdi v. Rumsfeld, a 2004 case involving the closely related question of military detention of a U.S. citizen, the Supreme Court explicitly “reject[ed] the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.” As the court said, the government’s approach “cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of Government.” To the contrary: “[A] state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” If this is true when liberty is at stake, it surely is all the more true when life is on the line.

Mr. Holder correctly notes that national security operations often involve “real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage and other judgments - all of which depend on expertise and immediate access to information that only the executive branch may possess in real time.” Fair enough. If the executive branch suddenly finds a terrorist in its sights, it does not have to wait for a court order to pull the trigger. But these sorts of exigencies can only justify postponing judicial review until after the event; it cannot justify dispensing with judicial review altogether.

And in any case, al-Awlaki did not present this sort of problem. He reportedly was on the U.S. kill list for more than a year. Indeed, a predator drone strike tried and failed to kill him months before he was actually killed. Balancing “the need to act, the existence of alternative options, the possibility of collateral damage” and so forth is indeed the exclusive province of the executive branch. But no such balancing was necessary before putting al-Awlaki on the kill list months before. Whether he belonged on the list - whether, in other words, there was sufficient evidence to determine that he was, in fact, a terrorist - is a quintessentially judicial question, which easily could have been aired in court.

In his speech, Mr. Holder relied on Ex Parte Quirin, a World War II case in which the Supreme Court said that “citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war.” That may or may not be right; as Justice Antonin Scalia says, Ex Parte Quirin “was not the court’s finest hour.” But in any case, the Ex Parte Quirin formulation begs the question of due process. A proven enemy belligerent may indeed forfeit certain rights, but the logically prior question - the question on which judicial process is due - is whether the target is, in fact, an enemy belligerent.

The duty now falls to Congress to address this constitutional problem. Congress should provide for judicial review of any executive decision to target and kill a U.S. citizen. Legislation should, of course, specify a significant level of deference to the executive branch. And it should be the Foreign Intelligence Surveillance Court, which is expert in guarding classified and sensitive information, that is given jurisdiction to issue such warrants. This solution would protect our national security and protect our Constitution.

Stephanie Hessler, an adjunct fellow at the Manhattan Institute, was a lawyer for the Senate Judiciary Committee.

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