This week we have been discussing Attorney General Eric Holder’s recent speech at Northwestern University Law School detailing the claim of President Barack Obama that he has the right to kill American citizens based on his inherent authority and the ongoing war on terror. I previously wrote a blog and a column on the issue. Those pieces noted that Holder limited his remarks by referring to targeted killing “abroad.” However, I noted that the Administration’s past references to this power are not so limited. Indeed, the only limits stated by the Administration have been self-imposed standards and what Holder calls “due process” — expressly excluding “judicial process.” Now, FBI Director Robert Mueller has entered the fray. On Wednesday Mueller was asked in a congressional hearing whether the current policy would allow the killing of citizens in the United States. Mueller said that he simply did not know whether he could order such an assassination. It was the perfect moment to capture the dangerous ambiguity introduced into our system by this claim of inherent authority. I can understand Mueller deferring to the Attorney General on the meaning of his remarks, but the question was whether Mueller understands that the same power exists within the United States. One would hope that the FBI Director would have a handle on a few details guiding his responsibilities, including whether he can kill citizens without a charge or court order.
Mueller was asked whether the same criteria used to kill Americans abroad also would apply in the United States and whether the President retained the “historical” right to order such assassination on U.S. land. When asked this basic question by Rep. Kevin Yoder (R-Kan.), Mueller said that he was simply unsure where the President’s authority would end, if at all, in killing citizens: “I have to go back. Uh, I’m not certain whether that was addressed or not” and added I’m going to defer that to others in the Department of Justice.” He appeared unclear whether he had the power under the Obama Kill Doctrine or, in the very least, was unwilling to discuss that power. For civil libertarians, the answer should be easy: “Of course, I do not have that power under the Constitution.”
After my column ran in Foreign Policy magazine, a reporter at a leading newspaper who I respect emailed me to question whether it is accurate to say that this policy is unlimited and whether officials have truly asserted the right to kill citizens at anytime and anywhere, particularly in the United States. He noted that the Administration insists that it is doing its own “constitutional analysis” for every killing — simply without the involvement of the courts. As I have noted before, this assertion is based on the threshold presumption that the Constitution does not require these determinations to be made by a court or that they be subject to court review. They then redefine the protections of due process as a balancing test within the administration. This Administration has consistently maintained that courts do not have a say in such matters. Instead, they simply define the matter as covered by the Law Of Armed Conflicts (LOAC), even when the conflict is a war on terror. That war, they have stressed, is to be fought all around the world, including the United States. It is a battlefield without borders as strikes in other countries have vividly demonstrated.
The claim that they are following self-imposed “limits” which are meaningless — particularly in a system that is premised on the availability of judicial review. The Administration has never said that the LOAC does not allow the same powers to be used in the United States. It would be an easy thing to state. Holder can affirmatively state that the President’s inherent power to kill citizens exists only outside of the country. He can then explain where those limits are found in the Constitution and why they do not apply equally to a citizen in London or Berlin. Holder was not describing a constitutional process of review. They have dressed up a self-imposed review of a unilateral power as due process. Any authoritarian measure can be dressed up as carefully executed according to balancing tests, but that does not constitute any real constitutional analysis. It is at best a loose analogy to constitutional analysis.
When reporters asked the Justice Department about Mueller’s apparent uncertainty, they responded that the answer is “pretty straightforward.” They then offered an evasive response. They simply said (as we all know) that “[t]he legal framework (Holder) laid out applies to U.S. citizens outside of U.S.” We got that from the use of the word “abroad.” However, the question is how this inherent authority is limited as it has been articulated by Holder and others. What is the limiting principle? If the President cannot order the killing of a citizen in the United States, Holder can simply say so (and inform the FBI Director who would likely be involved in such a killing). In doing so, he can then explain the source of that limitation and why it does not apply with citizens in places like London. What we have is a purely internal review that balances the practicality of arrest and the urgency of the matter in the view of the President. Since the panel is the extension of his authority, he can presumably disregard their recommendations or order a killing without their approval. Since the Administration has emphasized that the “battlefield” in this “war on terror” is not limited to a particular country, the assumption is that the President’s authority is commensurate with that threat or limitless theater of operation. Indeed, the Justice Department has repeatedly stated that the war is being fought in the United States as well as other nations.
Thus, Mueller’s uncertainty is understandable . . . and dangerous. The Framers created a system of objective due process in a system of checks and balances. Obama has introduced an undefined and self-imposed system of review that borders on Supreme Court Justice Potter Stewart’s test for pornography in his concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964): “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Presumably, when Holder sees it, he will let Mueller know.