Now that the Obama administration's policy of targeted assassinations and secret "kill lists" is finally being discussed publicly in the media nearly four years after these policies were officially implemented, questions are being raised over the legality and constitutionality of these programs. While Obama supporters and Senate Republicans are defending a president's claim to target and kill American citizens without due process, these actions are one of the biggest violations of constitutional law that a government can ever take and have absolutely no place in a professed free society.
According to the Department of Justice white paper that was leaked last week summarizing the administration's justification of the killing of Muslim cleric and U.S. citizen Anwar al-Awlaki in Yemen in 2011, the president has the power to order extrajudicial killings if an "informed, high-level official" deems a suspect a "continuing" and "imminent" threat to the country.
The problem with this claim is that the administration defines "imminent threat" in such a way as to render the word nearly meaningless. The president can order the kill if "capture is unfeasible," but this also is defined incredibly broadly. While attempting to use this type of language to give a general facade of placing limits and boundaries on their power to kill, in actuality it places virtually no restrictions on the government's power to kill in secrecy.
As flawed as these arguments are, perhaps the worst aspect of Obama's justifications is when the administration claims that limits on its power are simply not enforceable in court and ignores even the most modest restraints on depriving persons of their life.
No court has the power to oversee the president's power, argues the administration, and the president will engage in targeted killings without presenting any evidence to a court before or after and rejects the idea that it even needs to. In Mathews v. Elridge, the Supreme Court established minor limits on the federal government's authority by taking into account "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." The administration ignores even this vague limit, not only in the leaked white paper but by Attorney General Eric Holder's own words a few years back when he defended the right of the military to indefinitely detain American citizens without trial.
It seems absurd to debate the constitutionality of such a program, especially considering the U.S. Constitution's direct and clear wording on the matter. The Fifth Amendment states that "no person shall be deprived of life, liberty, or property without due process." The federal government, under no circumstances, can deny any person's individual rights without due process. It's really fairly simple and straightforward.
As hard as they apparently tried to justify it on their own broad interpretations of constitutionality, every claim made by the Obama administration substantiating the right of the U.S. government to order extrajudicial killings, suspend due process, and severely limit any court's ability to challenge this authoritarian power fails.
What the DOJ white paper and the Obama administration reveal are not just dubious claims of legality and arrogant assertions of rights to complete secrecy, but a completely backward concept of constitutional law. While the U.S. Constitution is very flawed and gives far too many powers to the central government, the purpose of our revolution, thousands of years of Western tradition on common law, and classical liberalism that led to the document, is an attempt to limit state power against the inherent, natural rights of every individual.
Every single provision in the Constitution exists to place limits on government's coercive power. Government abuse through interventions in the free associations of economic and personal activity has unfortunately been the central theme of history, resulting in stagnant economies and lack of prosperity at its minimum, and gulags, guillotines, and gas chambers at its worst.
The Obama administration's defense of targeted killings is simply on par by its rejection of these limits, instead opting for a philosophy that gives the federal government power that is not explicitly denied to it rather than enumerated powers granted to it by free people.
The response among liberals and conservatives has been disappointing, if not unsurprising. Liberals, with apologies to a few consistent progressives, have been largely silent. Conservatives are suddenly outraged, but even their critiques contain firm defenses of the Bush administration's illegal and immoral torture regime, and one wonders how loud their voices would be if a President Romney or Rubio were ordering the killing.
Does the president have the power to suspend due process, create kill lists, and order killings without any judicial oversight? Absolutely and emphatically no. While the U.S. government has ignored limits on its power that the Constitution authorizes basically since President Washington used the military to force Americans to pay a liquor tax, the president's defense of the power of judge, jury, and executioner is the pinnacle of unconstitutional government.
So while liberals and conservatives play partisan politics and the mainstream media trips over itself to defend the administration, it is up to those of use concerned with limiting state power regardless of who is in power to defend the tenets of a free society. Now that the federal government has declared that it may kill or indefinitely detain any one of us, our job becomes ever more necessary by the day.