Is the president empowered to target persons in the United States? No
In a piece in Mother Jones, Adam Serwer argues:
[W]hy didn't Obama just say, "no, the president cannot deploy drone strikes against US citizens on American soil"? Because the answer is probably "yes." That may not be as apocalyptically sinister as it sounds.
I disagree that the answer is yes and I disagree that it does not sound apocalyptically sinister. Serwer relies on law professor Steven Vladeck:
"Certainly, we routinely 'targeted' U.S. citizens during the Civil War," says Steve Vladeck, a law professor at American University's Washington College of Law. "Even if the targeting was with imprecise 19th-century artillery as opposed to 21st-century [unmanned arial vehicles]." If he had the technology, President Abraham Lincoln would most likely have been within his authority to send a drone to vaporize Confederate General Robert E. Lee.
The inaptness of this comparison seems obvious does it not? Lincoln faced an insurrection on United States soil. President Obama does not. Is there something more to the argument? Serwer writes:
Congress has long held that the president has the authority to use the military domestically in some circumstances. The Posse Comitatus Act, passed after Reconstruction to limit the use of military force on US soil, states that the military can be used to enforce the law "in cases and under circumstances expressly authorized by the Constitution or Act of Congress." The last time this happened was 1992 when, citing the Insurrection Act, President George H.W. Bush called out the National Guard to suppress the Los Angeles riots in the aftermath of the Rodney King verdict.
The Posse Comitatus Act, textually states:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
Is there something in the Constitution that expressly authorizes the President to target person in the United States? No. In fact, there is an express prohibition, the Due Process Clause:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." [Emphasis supplied.]
The question is whether the Authorization for Use of Military Force, which Congress passed in the aftermath of the 9/11 attacks, counts as "express authorization" to carry out a targeted killing on US soil.
Well, let's read the empowering provisions:
Section 2 - Authorization For Use of United States Armed Forces (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
The argument that Serwer appears to adopt is that this empower the president to "use all necessary and appropriate force against those [...] organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 [...]in order to prevent any future acts of international terrorism against the United States" including such persons and organizations located in the United States.
The problem is the 2001 AUMF does not include the language "in the United Sates." To wit, the Posse Comitatus Act's requirement of "express authorization" is not met. There is no express authorization for military targetting in the United States.
The 2001 AUMF is an abomination. It needs to be repealed. But it does not do what Serwer argues it does.
The Obama Administration can and should confidently state that it is not empowered to target persons in the United States. Because it is not.
Oh by the way, absent insurrection or rebellion, I do not believe the Congress is authorized by the Constitution ("To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions") to empower the president to target persons in the United States.
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