Executive power grab

From an editorial in today’s New York Times:

On one level, there were not too many surprises in the newly disclosed “white paper” offering a legal reasoning behind the claim that President Obama has the power to order the killing of American citizens who are believed to be part of Al Qaeda. We knew Mr. Obama and his lawyers believed he has that power under the Constitution and federal law. We also knew that he utterly rejects the idea that Congress or the courts have any right to review such a decision in advance, or even after the fact.

Still, it was disturbing to see the twisted logic of the administration’s lawyers laid out in black and white. It had the air of a legal justification written after the fact for a policy decision that had already been made, and it brought back unwelcome memories of memos written for President George W. Bush to justify illegal wiretapping, indefinite detention, kidnapping, abuse and torture.

The power of our Constitution is driven, in major part, by the separation of powers. The claim that a US President can unilaterally order the killing of an American citizen with no judicial oversight before or after the killing should be anathema to our citizens.

Fortunately, the ACLU continues to pursue a case through the courts to open the executive decision-making process and secure judicial review of this killing program.

“Under our constitutional system, the right to life is not entrusted to the Executive alone,” Hina Shamsi, director of the ACLU’s national security project, said in the court papers filed Tuesday night in Washington. The ACLU and the Center for Constitutional Rights represent the personal representatives of the estates of the U.S. citizens, including Anwar al-Awlaki, in the case.

The killing of Awlaki, a Muslim cleric whom the U.S. government officially designated a “global terrorist,” occurred in 2011 outside of any battlefield, the ACLU lawyers said. Targeting Awlaki, the plaintiffs said in their papers, was unlawful because he wasn’t “engaged in activities that presented a concrete, specific, and imminent threat of death or serious physical injury.”

The application of the so-called “political question doctrine,” in which the judiciary refrains from wading into the political realm, should be narrowly construed, the ACLU said. The challengers said the claims in the suit, brought under the Fourth and Fifth Amendments, “could not be more squarely committed to the judiciary.”

For a good summary of thoughtful reactions to the Administration’s policy, check out this from Andrew Sullivan.