As the worldwide drone program ramps up, there have been increasing calls for the president to reveal the basis for his claimed authority. Only a few weeks ago, U.S. District Court Judge Colleen McMahon denied both the ACLU's and New York Times' requests under the Freedom of Information Act to obtain any and all legal documents prepared in support of the president's claim of unilateral powers. While Judge McMahon was concerned that the documents "implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws not of men," she felt constrained by precedent to withhold them. Now, a bipartisan group of 11 senators has written a letter to president Obama asking for "any and all legal opinions" that describe the basis for his claimed authority to "deliberately kill American citizens."
However, not until the Senate began gathering information for hearings on John Brennan's confirmation as CIA director, to begin February 7, has public attention finally been focused on this remarkable presidential usurpation of power.
On the night of February 4, the walls of secrecy were breached when NBC News released a leaked U.S. Justice Department White Paper entitled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa'ida or An Associated Force." Now we can see why the Department of Justice has been so reluctant to share the basis for its legal analysis. It is deeply flawed -- based on a perverse view of the Fifth Amendment Due Process Clause. Additionally, the white paper completely ignores the procedural protections expressly provided in the Constitution's Third Article -- those specifically designed to prohibit the president from serving as prosecutor, judge, jury, and executioner.
The white paper does not seek to delimit the federal power to kill citizens, but simply sets out a category of "targeted killing" of American citizens off the battlefield on foreign soil which it deems to be clearly authorized. Moreover, this power is not vested exclusively in the president, or even the secretary of defense, or even officials within the Department of Defense -- rather, it can be relied on by other senior officials of unspecified rank elsewhere in government.
According to the white paper, there are only three requirements to order a killing. First, "an informed high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States." Second, capture is "infeasible." And third, the " operation would be conducted in a manner consistent with the applicable law of war principles." Indeed, from the white paper, it is not clear why killings of U.S. citizens on American soil would be judged by a different standard.
Mimicking a judicial opinion, the White Paper employs pragmatic tests developed by the courts to supplant the plain meaning of the Fifth Amendment Due Process and Fourth Amendment Search and Seizure texts. Balancing away the constitutionally protected interests of the citizen in life, liberty, and property against the more important "'realities' of the conflict and the weight of the government's interest in protecting its citizens from an imminent attack," the Justice Department lawyers have produced a document worthy of the King Council's Court of Star Chamber -- concluding that the U.S. Constitution would not require the government to provide notice of charges, or a right to be heard, "before using lethal force" on a U.S. citizen suspected of terrorist activity against his country. How very convenient. The Obama administration lawyers appear to have forgotten that the Star Chamber was abolished by the English Parliament in 1641 in order to restore the rule of law adjudicated by an independent judiciary, terminating the rule of men administered by the king's courtiers.
Also, conspicuously missing from the Justice Department's constitutional analysis is any recognition that the Founders already balanced the life, liberty, and property interests of an American citizen suspected of "levying war against [the United States], or in adhering to their enemies, giving them aid and comfort," and provided them the specific procedural protections in Article III of the Constitution. When a U.S. citizen is suspected of treason, the constitutional remedy is not to invent new crimes subject to the summary execution at the pleasure of the president and his attorneys. In Federalist No. 43, James Madison proclaimed that the Treason Clause would protect citizens "from new-fangled and artificial treasons ... by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it[.]" To that end, the Constitution does not permit the Obama lawyers to invent an elastically defined offense of "an imminent threat of violent attack against the United States," in substitution for the constitutionally concrete definition of "levying war against [the United States], or in adhering to their enemies, giving them aid and comfort."
Moreover, Article III, Section 3 of the Constitution requires trial in "open court" -- not in some secret "war room" in an undisclosed location. That same section of Article III requires proof by "the testimony of two witnesses to the same overt act, or on confession" -- not by a unilateral "determin[ation] that the targeted individual poses an imminent threat of an attack against the United States." Finally, as is true of "all crimes," Article III, Section 2 requires "trial ... by jury" on a charge of treason, not trial by some unidentified "high-level official of the U.S. government[,]" no matter how well-"informed" he may be. In short, the Constitution provides that an American citizen must be tried and punished according to the judicial process provided for the crime of treason, not according to some newfangled and artificial executive "process" fashioned by nameless collection of lawyers.
These nameless lawyers have also ignored the Justice Department's own venerable precedents. The White Paper relies on the "laws of war" -- but laws of war do not control here. On August 21, 1798, U.S. Attorney General Charles Lee -- serving under President John Adams -- directed to the U.S. secretary of state an official opinion in which he determined that in the undeclared state of war between France and the United States, "France is our enemy; and to aid, assist, and abet that nation in her maritime warfare, will be treason in a citizen[, who] may be tried and punished according to our laws[, not like a French subject, who must be] treated according to the laws of war."
It is a measure of how far we have fallen as a nation -- not only that President Obama asserts and exercises such a terrible power, but that only 11 U.S. senators would be willing to affix their names to a letter to ask the Obama administration to provide its legal reasoning. If John Brennan is confirmed as CIA director, and the killings of U.S. citizens continue based on this whitewash of a white paper, then the U.S. Senate will have yielded up to the president without even a fight the power to kill citizens without judicial due process -- a power that has been unknown in the English-speaking world for at least 370 years.
Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. Bill Olson served in three positions in the Reagan administration. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C. They filed an amicus curiae brief supporting a preliminary injunction in the Chris Hedges challenge to the detention provisions of the National Defense Authorization Act of 2012 ("NDAA"), addressing the Treason Clause, and also filed an amicus curiae brief in that case in the U.S. Court of Appeals for the Second Circuit. They can be reached at wjo@mindspring.com or twitter.com/OlsonLaw.
