Presidential Power to Kill? Obama's Assassination Orders Deface Constitution

Article excerpt


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. …