Obama's 'Kill List' Is Unchecked Presidential Power

A stunning report in the New York Times depicted President Obama poring over the equivalent of terrorist baseball cards, deciding who on a "kill list" would be targeted for elimination by drone attack.

A stunning report in the New York Times depicted President Obama poring over the equivalent of terrorist baseball cards, deciding who on a "kill list" would be targeted for elimination by drone attack. The revelations -- as well as those in Daniel Klaidman's recent book -- sparked public outrage and calls for congressional inquiry.

Yet bizarrely, the fury is targeted at the messengers, not the message. Sen. John McCain (R-Ariz.) expressed dismay that presidential aides were leaking national security information to bolster the president's foreign policy credentials. (Shocking? Think gambling, Casablanca). Republican and Democratic senators joined in condemning the leaks. Attorney General Eric H. Holder Jr. -- AWOL in the prosecution of rampant bank fraud -- roused himself to name two prosecutors to track down the leakers.

Please. Al-Qaeda knows that U.S. drones are hunting them. The Pakistanis, Yemenis, Somalis, Afghanis and others know the U.S. is behind the drones that strike suddenly from above. The only people aided by these revelations are the American people who have an overriding right and need to know.

The problem isn't the leaks, it's the policy. It's the assertion of a presidential prerogative that the administration can target for death people it decides are terrorists -- even American citizens -- anywhere in the world, at any time, on secret evidence with no review.

"It is vital that Congress reassert its constitutional authority."

It is a policy driven largely by the new technological capacity of pilotless aircraft. Drone strikes have rapidly expanded, becoming a centerpiece of the Obama strategy. Over the last three years, the Obama administration has carried out at least 239 covert drone strikes, more than five times the 44 approved under George W. Bush.

Drones are enormously seductive and widely popular. Video games made real, they are relatively cheap, risk no U.S. casualties, claim to be exactly targeted and, according to the administration, have been lethal in eliminating al-Qaeda's operatives. As Adm. Dennis Blair, former director of national intelligence for the Obama administration before being pushed out, notes, "It plays well domestically and it is unpopular only in other countries. Any damage it does to the national interest only shows up over the long term."

Drones are also alarming. As a recent congressional letter of inquiry notes, "They are faceless ambassadors that cause civilian deaths . . . They can generate powerful and enduring anti-American sentiment." The drone attacks may generate as many terrorists as they dispatch. They seduce the U.S. into literally policing the world, an intrusive presence that surely will generate hostility and retribution.

Moreover, the president's claim offends the spirit and letter of the Constitution and shreds the global laws of war. Our founders were eager to curb the prerogative of kings to wage war and foreign adventures. That is why the Constitution gave Congress the power to declare war. Yet the president now claims the right to attack anywhere in the world in an apparently endless war against terrorism.

The argument, of course, is that we are at war with al-Qaeda's terrorists -- one that Congress authorized -- and thus the president is free to track them down and attack them anywhere in the world, even if they are American citizens. To enforce this, the U.S. has Special Operations forces in some 60 to 75 countries and has unleashed drones in at least five.

The administration is at pains to suggest that no one is targeted for death until after extensive review, internal checks and balances and administrative "due process" of a sort. But this rationale is refuted by what we know from the administration's own limited releases of information. Officials distinguish between "personality strikes" -- which are targeted at named operatives -- and "signature strikes" -- which are triggered by evidence of allegedly threatening activity by unidentified persons. Not surprisingly, the latter have been notorious for the "collateral damage" -- innocent civilians -- who have been casualties.

Most Americans support the drones -- after all they're going after terrorists. But the administration is claiming the right to charge, try and execute an American citizen without a hearing or a trial and conviction. The Constitution, Attorney General Holder argues, "guarantees due process, not judicial process." But once more, this tramples the entire framework of the Bill of Rights, which was devised to limit the power of the state to lock up political dissenters without an independent tribunal.

It is vital that Congress reassert its constitutional authority. In the 1952 Steel Seizure case, Justice Felix Frankfurter argued that "a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned . . . may be treated as a gloss on the executive power" vested in the president by the Constitution. The practice doesn't just become legal, it becomes part of the Constitution, and Congress cannot thereafter challenge the authority that has been ceded.

Over twenty legislators led by Rep. John Conyers (D-Mich.), the ranking Democrat on the House Judiciary Committee, and Rep. Dennis Kucinich (D-Ohio) have written formally to the president asking that he explain openly "the process by which signature strikes are authorized and executed; the mechanisms used to "ensure such killings are legal;" and the mechanisms to track civilian casualties. The Congress should also insist that the Justice Department memo detailing the legal arguments relied on by the president be made public. And then Congress needs to hold a grand inquest on presidential war powers and the rights of both the Congress and American citizens.

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