Who Says You Can Kill Americans, Mr. President?

By Vicki Divoll

President Obama has refused to tell Congress or the American people why he believes the Constitution gives, or fails to deny, him the authority to secretly target and kill American citizens who he suspects are involved in terrorist activities overseas. So far he has killed three that we know of.

Presidents had never before, to our knowledge, targeted specific Americans for military strikes. There are no court decisions that tell us if he is acting lawfully. Mr. Obama tells us not to worry, though, because his lawyers say it is fine, because experts guide the decisions and because his advisers have set up a careful process to help him decide whom he should kill.

He must think we should be relieved.

The three Americans known to have been killed, in two drone strikes in Yemen in the fall of 2011, are Anwar al-Awlaki, a radical Muslim cleric who was born in New Mexico; Samir Khan, a naturalized American citizen who had lived in New York and North Carolina, and was killed alongside Mr. Awlaki; and, in a strike two weeks later, Mr. Awlaki’s 16-year-old son, Abdulrahman al-Awlaki, who was born in Colorado.

Most of us think these people were probably terrorists anyway. So the president’s reassurances have been enough to keep criticism at an acceptable level for the White House. Democrats in Congress and in the press have only gingerly questioned the claims by a Democratic president that he is right about the law and careful when he orders drone attacks on our citizens. And Republicans, who favor aggressive national security powers for the executive branch, look forward to the day when one of their own can wield them again.

But a few of our representatives have spoken up — sort of. Several months ago, Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, began limply requesting the Department of Justice memorandums that justify the targeted killing program. At a committee hearing, Attorney General Eric H. Holder Jr., reminded of the request, demurred and shared a rueful chuckle with the senator. Mr. Leahy did not want to be rude, it seems — though some of us remember him being harder on former President George W. Bush’s attorney general, Alberto R. Gonzales, in 2005.

So, even though Congress has the absolute power under the Constitution to receive these documents, the Democratic-controlled Senate has not fought this president to get them. If the senators did, and the president held fast to his refusal, they could go to court and demand them, and I believe they would win. Perhaps even better, they could skip getting the legal memos and go right to the meat of the matter — using oversight and perhaps legislating to control the president’s killing powers. That isn’t happening either.

Thank goodness we have another branch of government to step into the fray. It is the job of the federal courts to interpret the Constitution and laws, and thus to define the boundaries of the powers of the branches of government, including their own.

In reining in the branches, the courts have been toughest on themselves, however. A long line of Supreme Court cases require that judges wait for cases to come to them. They can take cases only from plaintiffs who have a personal stake in the outcome; they cannot decide political questions; they cannot rule on an issue not squarely before them.

Because of these and other limitations, no case has made it far enough in federal court for a judge to rule on the merits of the basic constitutional questions at stake here. A pending case filed in July by the families of the three dead Americans does raise Fourth and Fifth Amendment challenges to the president’s killings of their relatives. We will see if the judge agrees to consider the constitutional questions or dismisses the case, citing limitations on his own power.

In another case, decided two weeks ago, a federal judge in Manhattan, Colleen McMahon, ruled, grudgingly, that the American Civil Liberties Union and two New York Times reporters could not get access, under the Freedom of Information Act, to classified legal memorandums that were relied on to justify the targeted killing program. In her opinion, she expressed serious reservations about the president’s interpretation of the constitutional questions. But the merits of the program were not before her, just access to the Justice Department memos, so her opinion was, in effect, nothing but an interesting read. 

So at the moment, the legislature and the courts are flummoxed by, or don’t care about, how or whether to take on this aggressive program. But Mr. Obama, a former constitutional law professor, should know, of all people, what needs to be done. He was highly critical when Mr. Bush applied new constitutional theories to justify warrantless wiretapping and “enhanced interrogation.” In his 2008 campaign, Mr. Obama demanded transparency, and after taking office, he released legal memos that the Bush administration had kept secret. Once the self-serving constitutional analysis that the Bush team had used was revealed, legal scholars from across the spectrum studied and denounced it.

While Mr. Obama has criticized his predecessor, he has also worried about his successors. Last fall, when the election’s outcome was still in doubt, Mr. Obama talked about drone strikes in general and said Congress and the courts should in some manner “rein in” presidents by putting a “legal architecture in place.” His comments seemed to reflect concern that future presidents should perhaps not wield alone such awesome and unchecked power over life and death — of anyone, not just Americans. Oddly, under current law, Congress and the courts are involved when presidents eavesdrop on Americans, detain them or harshly interrogate them — but not when they kill them.

It is not just the most recent president, this one and the next whom we need to worry about when it comes to improper exercise of power. It is every president. Mr. Obama should declassify and release, to Congress, the press and the public, documents that set forth the detailed constitutional and statutory analysis he relies on for targeting and killing American citizens.

Perhaps Mr. Obama still believes that, in a democracy, the people have a right to know the legal theories upon which the president executes his great powers. Certainly, we can hope so. After all, his interpretation might be wrong.

Vicki Divoll is a former general counsel to the Senate Select Committee on Intelligence and former deputy legal adviser to the C.I.A.’s Counterterrorism Center.