By now we've all heard that Department of Justice attorneys are asserting the constitutionally dubious "state secrets" doctrine in attempting to quash a lawsuit filed by the father of a citizen who is openly being targeted for assassination by the federal government.
What has me concerned isn't just the assertion of state secrets--the Executive Branch can always be counted on to endorse the broadest imaginable reading of presidential authority--but the fact that we have a branch of government claiming it's acceptable to target American citizens for extrajudicial killings.
For over six decades, we've been moving toward an untenable balance of powers among the branches. How we got here is a big part of the story. Figuring out where we are, and where we go from here, is the challenge that confronts us.
I. How we got here
Presidential war powers were created in an inherent contradiction. On the one hand, we had just won our independence from an empire where declaring and making war were part of the "king's prerogative," subject to few if any checks by the Parliament. The king could declare war alone, raise armies alone, establish taxes alone, grant letters of marque alone, and decide the rules that his forces would follow. Our Founders saw royal power as dangerous to liberty and self-government, and sought to limit executive power in the US to a far more restrictive level than in any other nation.
At the same time, the Philadelphia Convention and the state ratification conventions were sure about one thing if nothing else: George Washington, General of the Continental Army and savior of the new nation, was going to be our first Executive, and would probably hold that job for as long as he wished. Washington's integrity was considered above reproach. The standard for how future Presidents should conduct themselves would be set by the greatest possible role model. Further, Washington was the president of the convention, and as such served as a constant reminder of the experience of the recent "war by committee" that resulted from having the Continental Congress as the ultimate authority on how the Revolution was prosecuted.
With these two competing impulses in mind--a strong desire to break with the British monarchial system and a desire to provide 'energy' for future-President Washington's Executive Branch--the Framers went about drafting a system for waging war.
Part One: The Congress's Powers
"The Congress shall have Power...To define and punish Piracies and Felonies committed on the High Seas, and Offenses against the Law of Nations...To declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years...To provide and maintain a Navy...To make Rules for the Government and Regulation of the land and naval Forces...To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions...To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress...." - Article I, Sec. 8, clauses 8-16.
There's a lot to unpack in the enumerated war powers that We the People have granted to Congress.
What Section 8 seems to imply is that Congress gets to start the wars, fund the troops, and make the rules that they have to follow. The power to declare that the US is in a state of war rests, under the Constitution, with the Congress. Congress gets to set the rules concerning "captures," meaning prizes and prisoners. Congress gets to define what constitute "offenses against the Law of Nations" (pretty much "violations of international law and custom"). Congress can pay to call up the National Guard, and give them guns and orders.
All of these are things that Congress can do under the clear text of the Constitution. Here's what Congress can't do:
Wage war.
Nothing here empowers Congress to do what the Continental Congress did: namely, micromanage the conduct of our wars. Congress can designate who the enemy is, conscript soldiers to fight them, provide our forces with guns and ships, and set rules for their conduct. But Congress can't command. The Speaker of the House isn't empowered to ride out in front of the troops on a white horse and direct them to charge the enemy or defend a position. They can't pick which soldiers shall be commissioned as officers, or what duty assignments those officers will draw. They can name an enemy, but not which hill to charge.
So who gets to wage war once Congress lets the dogs out?
Part Two: The President's Powers
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." - Article II, Sec. 2., clause 1.
Now, the idea of George Washington riding out on a white horse to command forces in the field was not something the Founders had a problem with. Having a single Commander in Chief, in charge of prosecuting our wars and commanding our troops, promotes efficiency and expediency (the very sorts of "energy" the Federalists were so concerned with providing the Executive Branch).
But there were a lot of checks against Presidential power that let the Founders feel so comfortable about the Commander in Chief clause. While a small standing army, capable of little more than border defense in remote outposts and some ceremonial duties, was imagined by the conventioneers, an army capable of fighting a real war would only exist if called into existence by Congress (under the Raise and Support Armies clause). Washington would not be able to declare a war without Congressional approval. Washington couldn't unilaterally call up state militias to provide himself with troops (states cannot make war without Congressional consent under Art. I, Sec. 10, and Congress has to fund such a call-up under Art. I, Sec. 8). The President could run the war and command the forces, but neither the war nor the forces would exist unless Congress made it so.
(Ending war is a trickier question. The closest thing in the Constitution to a war-ending power is the President’s power to make treaties with the Senate’s consent. Congress can attempt to legislate the end of a war, binding the President under the Take-Care clause, but such an act is subject to a veto, meaning that starting a war could take a simple majority of each house but ending it could require 2/3rds. I don’t particularly buy that theory, but it does hold some sway.)
Part Three: The Shift Away from Congress
During the period between the Civil War and the Cold War, something happened to severely alter the power balance between the Executive and Legislative branches: we decided to have a large, standing army.
Once we settled on a large, standing military force, the balance between Congress and the President shifted dramatically in favor of the Executive Branch. While declarations of war were still Congress's province, the President now had 24/7 access to armed forces.
And, when you think about it, what is a "declaration of war," anyway? In some ways, it's fairly meaningless: Sir Robert Walpole once remarked that "most wars are declar'd from the mouths of cannons." If a President takes to the airwaves and announces that we intend to attack another country (or entities within another country's borders), for all intents and purposes that serves to declare to the other country that we plan to make war on them. If a President sends an attack plane to shoot a missile at a building halfway around the world, he can achieve that operation before Congress even has time to consider whether or not it's a good idea.
In many ways, this turn away from formal war declaration is a good development. It allows rapid response to emergent situations. Even the Constitution recognizes that traditional procedures cannot always be followed in some circumstances (states can fight wars without Congressional approval in case of invasion or immediate threat of attack, for example). It allows us to avoid telegraphing our punches, allowing sneak attacks when necessary to protect our forces and allies. And, since the War Powers Resolution (which was meant to limit Presidential war powers), Presidents have even been allowed to secretly commit forces for missions up to 90 days without any Congressional approval whatever (the President must notify Congress within 48 hours, but may keep forces deployed for up to 60 days of operations and 30 days of withdrawal time).
But what we've lost is significant: there is no longer an effective Legislative Branch check on the use of military and intelligence resources in many cases. We have invaded countries, won or lost wars, and returned home within the window provided by the War Powers Resolution. And when the President does start a fight without first checking with Congress, they almost always come back and retroactively authorize the action.
On September 18, 2001, we made an even further leap by empowering the President to unilaterally determine if a nation or person had any role in planning, authorizing, committing, or aiding in the 9/11 attacks. Congress authorized the President to use whatever military force he might deem "necessary and appropriate...in order to prevent any future acts of terrorism against the United States." Anwar al-Awlaki reportedly met privately with some of the 9/11 hijackers, bringing him under this legislation. This has provided the basis for the President's declaration that al-Awlaki, a citizen of the United States, may be targeted for killing, even though al-Awlaki has never been charged with or tried for any crime related to 9/11.
II. Where are we now?
We’re now in a period where the Congress has essentially no way to check the President’s war powers.
Sure, there’s always the "power of the purse," the ability to cut funding for military or covert operations and force an end to the conflict financially. But as we saw during the Iraq War, whenever the idea was broached, defunding gets portrayed as abandoning the troops in the field. Congress simply lacks the political strength of will to argue otherwise.
So for all intents and purposes, the President--any President, whether Republican or Democrat, elected or unelected--gets to exercise the Commander in Chief power pretty much however he wishes.
And the recent development is that the President wishes to use that power to assassinate an American citizen living abroad.
Now, I’m not well-versed enough in the current state of legal affairs to know if there’s any validity to the position that the US can target a citizen living overseas for extrajudicial killing without due process, based on nothing more than the President’s declaration that he has it comin’. But, honestly, how in the hell did we reach a point where that could be a question?
Are we really entertaining the idea that an American citizen, however repellent, can be targeted for assassination by the United States government? Are we really expected to accept that the government has that degree of power--that "We the People" have created an Executive Branch with the right to declare us legitimate targets?
III. Where do we go from here?
First, we need to attempt to capture al-Awlaki alive and put him on trial for treason. Once he’s convicted, we can argue about whether or not to kill him. Anything before that constitutes an unconstitutional usurpation of the people’s power by the state. (Hell, maybe we'll get lucky and he'll resist.)
Second, we need to restore the constitutional balance of power between Congress and the President. That can be done in one of two ways: either Congress can re-assert its war powers prerogatives against the President, or (cue the inevitable groans and eye-rolls) we can amend the Constitution to return the Executive Branch to its intended, weaker role in exercising war powers.
And third, at the earliest possible moment, we need to elect a President who understands what an unholy beast the Executive war powers have become, and who will treat them with the judicious and cautious temperament that the Founders trusted our leaders would exhibit. Or, better yet, we need to remind President Obama of what James Madison wrote in Federalist 47, when trying to sell a skeptical state on ratifying the new Constitution:
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.