Glenn Greenwald writes:
… even if you’re someone who does want the President to have the power to order American citizens killed without a trial by decreeing that they are Terrorists (and it’s worth remembering that if you advocate that power, it’s going to be vested in all Presidents, not just the ones who are as Nice, Good, Kind-Hearted and Trustworthy as Barack Obama), shouldn’t there at least be some judicial approval required? Do we really want the President to be able to make this decision unilaterally and without outside checks? Remember when many Democrats were horrified (or at least when they purported to be) at the idea that Bush was merely eavesdropping on American citizens without judicial approval? Shouldn’t we be at least as concerned about the President’s being able to assassinate Americans without judicial oversight? That seems much more Draconian to me.
It would be perverse in the extreme, but wouldn’t it be preferable to at least require the President to demonstrate to a court that probable cause exists to warrant the assassination of an American citizen before the President should be allowed to order it? That would basically mean that courts would issue “assassination warrants” or “murder warrants” — a repugnant idea given that they’re tantamount to imposing the death sentence without a trial — but isn’t that minimal safeguard preferable to allowing the President unchecked authority to do it on his own, the very power he has now claimed for himself? And if the Fifth Amendment’s explicit guarantee — that one shall not be deprived of life without due process — does not prohibit the U.S. Government from assassinating you without any process, what exactly does it prohibit?
Greenwald makes a series of excellent points but I would add one major point that really should come in front of the whole discussion: the idea that a legal distinction should be made between American citizens and non-Americans is a thoroughly un-American idea.
The Declaration of Independence does not say:
We hold these truths to be self-evident, that all Americans are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
It didn’t say “Americans”, it said “all men” — a declaration of what were taken to be universal human values.
To be concerned about whether the president has claimed to right to murder Americans is really missing the point. What in practice this and the former president are doing is not exercising any kind of specially fabricated legal right; they are committing murder exclusively where they believe they can get away with it.
Assassinations taking place in the tribal areas of Pakistan, in Yemen and Somalia, are all occurring in environments whose lawlessness means that US government officials can be reliably confident that they can act with relative legal impunity.