Sen. Rand
Paul (R-Ky.) has quite rightly called on the Obama administration
to publicly disclose its legal justifications for the claimed power
to order the killing, without trial or hearing, of U.S. citizens
abroad who are suspected of being terrorist leaders planning
attacks against the United States. The dispute came up, most
recently, in the context of David Barron’s successful nomination to
a seat on the U.S. Court of Appeals for the First Circuit. As a
lawyer in the Office of Legal Counsel, Barron reportedly
co-authored at least two memos providing the legal rationale for
the administration’s decision to order the killing of Anwar
al-Awlaki, a U.S. citizen and propagandist for Al Qaeda in the
Arabian Peninsula (AQAP).
Jennifer Rubin
incorrectly accused Sen. Paul of “misunderstand[ing] the
Constitution” which, in Rubin’s view, “affords the executive
branch replete powers in the foreign policy realm.” Quoting John
Yoo, Rubin suggests that Sen. Paul’s approach would “[include]
terrorists among those afforded constitutional protections.”
Al-Awlaki was no saint, and that can make the issue seem
trickier than it is. But calm evaluation of some basic facts make
it clear that Paul is right to insist that the Obama administration
explain its rationale (especially before Barron is confirmed to a
lifetime position on a federal appellate court), and Rubin is wrong
to suggest that Paul is defending terrorists.
These are the facts that matter, and show why Rubin’s criticism
is misplaced. First, although al-Awlaki was clearly a propagandist
for AQAP, that is not why the Obama administration placed him on a
kill or capture list (meaning that he could be killed if capture
was not feasible). The administration claimed that al-Awlaki was a
senior leader in AQAP involved in planning attacks against the
United States that posed an imminent threat. This claim has never
been proven. The Supreme Court has made clear that due process
requires a meaningful hearing before a neutral decisionmaker before
a U.S. citizen can be imprisoned, let alone killed. How, then, can
the administration justify al-Awlaki’s killing without hearing or
trial?
The argument seems to depend on an implausibly twisted
definition of due process.
Attorney General Eric Holder claims that due process need not be
judicial process—in other words, due process can be satisfied
by a purely internal review within the executive branch, with no
judicial oversight and limited congressional involvement. As
Harvard Law professor Noah Feldman points out, this is an
unprecedented definition of due process. As the Supreme Court
explained in the 2004 Hamdi decision, due process plays an
essential role in separation of powers, preventing the
concentration of power in one branch of government (here, the
executive branch). Holder’s definition turns due process on its
head. It is essential for the public to know whether the
administration relied on something like Holder’s approach in the
Barron memos written to justify al-Awlaki’s killing.
This helps expose the bankruptcy of Rubin’s claim that the
executive branch has “replete powers” in the area of foreign
policy. Not so.
The framers
of the Constitution quite consciously broke with the
then-prevailing British model, which did assign
plenary or essentially complete power over foreign affairs to the
monarch. The framers, of course, were creating a republic, not a
monarchy. The Constitution they drafted divided foreign affairs
powers between the President and Congress. The President is
Commander in Chief, but Congress has the power, for example, to
declare war, to regulate commerce with foreign nations, define
offenses against the laws of nations, and ratify treaties in the
Senate. It is true that there is a long-standing myth that the
President has plenary control over foreign affairs.
This myth has what
seems to be solid support in the Supreme Court’s 1936
Curtiss-Wright decision, which describes the President
as the “sole organ” of foreign policy, citing a speech John
Marshall gave in 1800 that used that term. But Marshall never went
as far as the Court suggested. He described the President as the
sole organ of the United States in carrying out treaties duly
enacted by the Senate, not as the sole organ in the sense of
possessing plenary or “replete” power over foreign affairs.
Even if Marshall had said this, he would have been wrong. The
Constitution does not, in fact, assign the President control over
foreign affairs. Rubin’s casual reference to “replete” executive
power in this area is sloppy and dangerous. The President, like
Congress and the courts, does not possess unlimited power.
Presidential power over foreign affairs is shared with Congress
and, to some extent, with the courts (in the sense that they may
exercise judicial review over some acts). Checks and balances
cannot be swept aside so easily. It is Rubin, not Paul, who
misunderstands the Constitution if she believes the President may
always act unilaterally when it comes to foreign affairs. Outside
of the emergency context (which was not, it appears, claimed by the
administration here), such power simply does not exist.
Although Rubin suggests otherwise, Paul’s criticism of the
targeted killing program and his insistence that the Obama
administration make the Barron memos available to the public has
nothing to do with defending terrorists. To the contrary, he is
rightly standing up for the principle that secret law has no place
in a constitutional democracy, and that even U.S. citizens like
al-Awlaki who are clearly no angels cannot be killed on the basis
of unproven claims.
Below, see author Chris Edelson
discuss presidential power with Reason’s Nick
Gillespie.
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