In constitutional republics, presidents don’t have ‘kill lists’

Washington routinely criticizes despotic regimes where officials exercise the power of life and death without restraint. President Barack Obama is such an official.

The U.S. has been fighting the “war on terrorism” for more than a decade. Washington has turned targeted killing — or assassination — into routine practice. The military deploys SEALs when the job needs to be close and personal, like killing Osama bin Laden. But drones are the preferred tool of choice. The administration claims to have recently used one to kill al-Qaida’s number two man, Abu Yahya al-Libi, in Pakistan.

This new form of warfare raises fundamental questions for a constitutional republic. International law bars arbitrary killing. Domestic law further restricts the execution of U.S. citizens. Moreover, promiscuous assassinations move foreign policy into the shadows, reducing public debate over basic issues of war and peace.

The issue ended up in federal court in August 2010 when Nasser al-Awlaki filed suit seeking a preliminary injunction to prevent the Obama administration from executing his son, Anwar al-Awlaki. The latter had been added to the federal “kill list” for his activities in Yemen with al-Qaida in the Arabian Peninsula (AQAP). The judge dismissed the lawsuit on procedural grounds and Anwar was later killed by a Predator drone.

Limits on government are necessary to preserve a liberal democratic order and protect individual liberty. The potential for abuse is greatest where state power is most extreme. There is no more extreme power than the power to kill.

After 9/11, one could view terrorism as a form of war, but the authorization of force passed in response more than a decade ago targeted people who since have been mostly killed or captured — those who “planned, authorized, committed, or aided” the 9/11 attacks. To legitimize presidential action today, Congress should vote for a declaration of war directed against present threats to America.

Moreover, if the U.S. is fighting a war, it should be conducted by the military under the president as commander-in-chief. The CIA should develop intelligence for use by the Pentagon in targeting its weapons, in this case drones. But the military should do the shooting. Of course, civilians at the agency are as capable as uniformed personnel at the Department of Defense at directing drones. However, giving responsibility to the CIA strips the process out of its war-related context, making it easier to deploy drones in less justifiable circumstances.

Some claim that Congress has secretly given the agency authority to kill. However, while operational matters are appropriately kept secret, legal authority to conduct lethal operations is not. Americans should know who is doing what in their name.

Those killed must be combatants. A leader, like al-Libi, of a hostile, violent terrorist group engaged in an ongoing campaign to harm Americans may be treated as the functional equivalent of a commander of a foreign military fighting against the U.S. Membership could count too, at least if someone is trying to kill Americans and has some potential of succeeding. But most terrorists don’t make videos confirming their status. And intelligence is imperfect: In the aftermath of 9/11, many non-terrorists were arrested at home and detained overseas. Some were imprisoned and tortured.