David McCraw, vice-president of the New York Times and a graduate of Albany Law, has been involved in a lawsuit for documents showing how the Administration decided which Americans to assassinate who were on foreign soil but not in war zones. United States District Judge Colleen MacMahon decided that the government did not have “to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States.”
But she added, “The Alice-in-Wonderland nature of this pronouncement is not lost on me” and she called it “a veritable Catch-22.” As she put it:
The[se] [Freedom of Information] requests . . . implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men.
As quoted in Judge MacMahon’s opinion, President Obama says:
the Government is ‘very careful in terms of how it’s been applied’ and does not carry out such operations ‘willy-nilly.’ Instead, the program is a ‘targeted, focused effort at people who are on a list of active terrorists who are trying to go in and harm Americans, hit American facilities, American bases, and so on.’
How should we respond to the president?
One problem of course is that decisions to deprive a person of his or her life are not the president’s alone under our Constitution, except on the field of battle.
We may or may not respond by trusting him as we trust, or don’t trust police with deadly force. Should we respond that he’s a good man so it’s OK. He won’t abuse the power. But the words don’t change much. In fact whether well-meaning or malevolent, democrat or dictator, that is what they all say, trust me for I will use the power well, though the Founding Fathers did not base their work on the idea that any office could be trusted with unchecked power. A decision on the rules is not just for President Obama. It applies to all presidents, whom we may or may not trust.
There is another problem with assassination – politics creates many motives for murder. Political opponents can be reimagined as traitors and dangerous to one’s all important career and goals. The Founders reacted to just such events in England in designing our own government more carefully. Wars have been fought because it made presidents look tough, even though some realized it might have been a bad idea. It is quite clear from the historical record that some presidents have misused their powers.
So what checks are in the system – what requires not only care but also a good enough case to assassinate? I’m not satisfied by procedures that only involve the Chief Executive and his handpicked lieutenants.
There’s another problem with drones. They widen the theatre of war. That theatre now includes bases inside the U.S. By using drones, the Administration makes attacks on U.S. soil more, not less, likely.
So to get the conversation on a much better footing, the documents showing what decisions it makes and how this Administration makes them must be released. It cannot be private.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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