ABSTRACT
Introduction Does the president have the legitimate authority to define individual persons as enemies, even if they are US citizens? As we have seen so far, the US legitimation of targeted killings hinges on them being a lawful activity, and therefore the role of the president and the executive branch is a key issue. The US system of constitutional government distributes sovereign authority via a system of checks and balances. The basic structure of the system (a president, and Congress divided into the Senate and the House of Representatives, as well as the Supreme Court) prevents the complete allocation of power in any single branch of government; however, this idealised system does not necessarily represent the actual functioning of modern government.3 Within this system, the president has a key executive role, as is demonstrated in the discursive ability to define individuals as members of al-Qaeda. However, the power of the president is meant to be limited by the system itself. Therefore, is the president’s ability to define persons as enemies lawful and legitimate within the US political system? In other words, are such discursive acts constitutional? To answer this question, we need to examine the interaction between power, politics and law in the United States. The argument presented here is not, however, a legal argument, even though it uses considerable amounts of case law to trace the process by which the president can define US citizens as enemies. This study of bounded political authority raises questions of sovereignty and law. Instead, the major cases that enable the president to define citizens as enemies and act against them on the basis of this definition forms the focus of attention. One of the significant features of the Bush administration is the authority that the executive apparently arrogated itself as a result of the War on Terror. Critics
commonly reference the AUMF and the Patriot Act as key bills that extended the power of the presidency. David Barron and Martin Lederman refer to Bush as pushing the ‘preclusive’ claims of power to their ‘logical extremes’.4 The executive and legislature’s long-running battle with the judicial branch over Guantanamo Bay is also cited as weakening this important third-branch check on executive power. The legal challenges to presidential authority over the definition and detention of persons held at Guantanamo Bay are therefore important to understanding the limits placed on the executive by the US legal system and judicial branch of government.5 Some argue that the Obama administration’s conduct is evidence that the Bush-era power shifts have not reset. Richard Jackson argues that the US counterterrorism approach has become embedded in both the institutions and culture of the United States, and that the Obama administration accepts these narratives and the authority that accompanies them.6 The Obama administration’s defence of targeted killings is that its ability to define persons as enemies is part of its legitimate authority within the constitutional system. In particular, this references the discursive difference between the Bush administration and the Obama administration – the Obama administration seeks to define its powers as within traditional constitutional boundaries, yet the use of targeted killings requires that the ability to define persons as enemies (by means of defining them as belligerents) is held by the president. Taken together, the Obama administration therefore requires the ability to define persons as enemies as a normal function of presidential authority. The ability claimed by the Obama administration (and the Bush administration that preceded it) is predicated on the fact that the United States is at war with al-Qaeda. The key fear is that the power this gives the president is expansive. This criticism comes from across the political spectrum; as the right-wing libertarian Ron Paul wrote, ‘[T]he precedent set by the killing of Awlaki established the frightening legal premise that any suspected enemy of the United States – even if they are a citizen – can be taken out on the President’s say-so alone’.7 In contrast, the Obama administration argues that its power to use these methods is specific and limited. The clearest definition is offered by Eric Holder:
Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.8
