Recent debate, some of it hysterical, over the National Security Agency surveillance programs has absorbed a great amount attention concerning the intersection of national security and privacy. The president, in our view, was correct to continue the Bush-era policies and is on firm legal ground. And while his use of drones to kill terrorists overseas gives us not a moment’s legal or moral concern, it is worth pointing out that he really doesn’t know what he is talking about and is creating confusion and bad precedent for future presidents.
Courtesy of the fine Lawfare blog, Jeff Powell, a professor at Duke Law School and veteran of the Justice Department’s office of Legal Counsel in both the Clinton and Obama administrations, provides some critical analysis of the president’s comments last month and of a white paper generated on the topic of drones. Powell writes on the subject of targeted drone killing of a U.S. citizen, Anwar Awlaki, in Yemen: “Mr. Obama’s discussion of that issue is fundamentally flawed in two ways: first, in his assumption that due process applies at all, and second, in his belief that the administration’s procedures satisfy due process.”
As to the first issue, due process has no application to Awlaki just as it would have no application if he engaged U.S. Marines in a firefight. Powell observes: “Mr. Obama was not justifying the killing of Mr. Awlaki as an extrajudicial execution but as the elimination of a particular enemy officer in the field as an act of war. The Constitution imposes other constraints on presidential action in a time of war, but due process has no role in what the Supreme Court’s 2004 decision in Hamdi v. Rumsfeld termed ‘the Executive in its exchanges …with enemy organizations in times of conflict.’” The Constitution does not set up judicial oversight of military decisions; it invests the commander in chief with the power to direct our armed forces. Why President Obama feels compelled to pretend otherwise is a function, one can infer, of his discomfort with his role as commander in chief and distaste for efforts that follow in his predecessor’s footprints. Still, he should know better than to spin a cotton candy confection such as this.
Even worse, I would argue, is the faux due process Obama creates for the non-existent Constitutional protection he makes up to cover Awlaki and other terrorists or abettors of terrorism. Powell explains:
It takes only a moment’s reflection to see that the President’s laudable procedures for imposing “strong oversight” over targeting decisions are worlds apart from Hamdi’s “essential constitutional promises” – indeed, it is hard to imagine how a military decision about attacking an enemy combatant could be otherwise. Of course the White Paper does not propose that potential targets be given notice of the government’s possible interest in killing them. Of course it does not contemplate, much less require, that a targeted individual be heard at any time or in any manner as to why the government is mistaken about his identity or activities. Of course it does not provide for a neutral and detached decisionmaker to resolve any factual uncertainty: the ultimate decisionmaker here is the President in his capacity as commander in chief, who (we should hope) is not in the least neutral or detached in carrying out his responsibility for national security. Calling the executive’s own procedures the due process that is meant to check arbitrary executive decisions isn’t merely an erosion of the “essential constitutional promises” but their wholesale repudiation. If Mr. Awlaki was entitled to due process, then his killing violated the Constitution.
In this sense, the president’s rationale for drone killings is both overbroad (in extending due process to the battlefield) and too narrow (in granting himself the sole determination of due process). It is the worst of all worlds, in that it potentially ties the hands of the executive while simultaneously eroding the meaning of real due process.
The right-leaning libertarians make a different error in this and on surveillance programs — claiming, without justification, that the fact of communications (not the content) and/or intercepts of non-U.S. citizens raise Fourth Amendment concerns. They don’t make up an executive-centric definition of due process, but they would, even worse, prevent drone killing of terrorists at “sidewalk cafes” and much of the NSA architecture that has intercepted numerous threats. They boast of their superior fidelity to the Constitution without understanding what the Constitution protects and doesn’t. In the end, their outcome — unilateral dismemberment of anti-terror tactics — is worse than the president’s. Their adherence to a false understanding of “privacy” leads to a false conclusion and a dangerous and politically untenable one that should disqualify them from responsibility for the nation’s defense.