The Unitary Executive and the Erosion of Due Process

Remember the “unitary executive”? You’re not unusual if you don’t. This phrase was part of a short-lived debate during the Bush presidency about the proper scope of presidential authority. Even though the debate was short-lived, the policies weren’t and Vice President Cheney revealed in his recent book that expanding the power of the presidency was perhaps his most important mission while he was in office.

The unitary executive is a catchphrase that encompasses the idea that the executive branch should enjoy significantly more power than it currently does in our established system of checks and balances. President Obama seems to share this philosophy, judging by his recent actions if not his words.

The recent killing of Anwar Al-Awlaki, an American citizen living in Yemen and recruiter for Al Qaeda, has prompted a small but growing debate that has similar contours to the debate about the unitary executive under President Bush – if not accompanied by the same vehemence from the left.

In fact, there is a profound lack of vehemence, on the left or the right, about the actions that Obama has taken that, if taken by Bush, would surely have led to massive protests about the misuse of our power abroad. It is clear now, to anyone who cares to pay attention, that Obama is following Bush’s lead on most foreign policy issues – and in some cases taking an even more aggressive tack than his predecessor.

The killing of Awlaki, which may be accurately called an assassination, was not a surprise. An earlier attempt, also using unmanned drones armed with missiles, failed in May, 2011. This was the first strike in Yemen after a year because the Yemeni government had withdrawn permission for the strikes after a botched strike in May, 2010, that missed its target but succeeded in killing a Yemeni official and a number of civilians. (Close observers will recall that the very first U.S. drone strike, at least the first one we know of from public accounts, was in Yemen in 2002).

U.S. officials made the argument that Awlaki had “gone operational,” but presented no evidence to support their case. When pressed, “officials” admitted the evidence was “patchy,” according to Reuters. The editor of the Yemeni Post denied that Awlaki had an operational role, stating: “[This strike] will not be a blow to Al-Qaeda in the Arabian Peninsula from any perspective. We don’t feel they will suffer, because [Awlaki] did not have any real role in [the organization].”

So was Awlaki just a recruiter or was he operational? I don’t know, and nor does anyone else outside the executive branch – and apparently they don’t really know either. The question is: Do we blindly believe our government on these types of issues, even as we get burned time and time again as the truth is later revealed? Does patriotism demand blind faith? No. Patriotism (and good journalism) demands that we be highly critical of unsubstantiated claims that form the basis for the unprecedented assassination of our own citizens. Let’s not forget that the U.S. did, for the first time in its history, consciously target a U.S. citizen with an unmanned drone, in a foreign country thousands of miles from our shores, with zero public due process.

This type of action, and the evidence it is allegedly based on, has to be scrutinized very closely.

There was an attempt at outside scrutiny by Awlaki’s own father, with the assistance of the ACLU. Awlaki brought a legal challenge against the federal government after he first learned that his son had been placed on a capture or kill list maintained by the White House. The ACLU argued on his behalf that “the United States is not at war in Yemen, and the government doesn’t have a blank check to kill terrorism suspects wherever they are in the world. Among the arguments we’ll be making is that, outside actual war zones, the authority to use lethal force is narrowly circumscribed, and preserving the rule of law depends on keeping this authority narrow.”

Exactly.

Unfortunately, when the lawsuit was filed the court threw it out by sidestepping the issue as a “political question.” There is some precedent for this in U.S. jurisprudence and all first-year constitutional law students learn about it (including yours truly years ago). However, I’m personally ashamed that in our advanced democracy we have a legal system that won’t even address due process concerns for its own citizens on a kill list in a foreign country, based purely on assertions made by the White House. This does not seem like democracy to me.

The U.S. drone program more generally should be a source of real concern. Obama has expanded the program dramatically and we now apparently have about 7,000 drones in operation around the world.

U.S. officials recently had the audacity to suggest that the drone program had gone a year with zero civilian casualties. When questioned about this striking claim, officials claimed that, well, there was no “credible evidence” of civilian casualties. When pressed further, it was revealed that it is generally not U.S. policy to inspect strike sites after the fact for civilian casualties. QED. The Orwellian nature of this argument should be lost on no one – but it is lost, unfortunately, on a regular basis.

The left in this country seems to be still in a daze when it comes to foreign policy under Obama because, well, he’s a good guy, right? Wrong. Every U.S. president has pursued an aggressive and highly-damaging foreign policy, particularly when judged from the point of view of our victims. There is one major difference, however, that I have detected between Democratic and Republican presidencies on foreign policy, after 20 years of observing and reading. This is the degree to which Democrats are far less likely to start unilateral foreign wars. In fact, judging by the 14 unilateral regime changes examined in Stephen Kinzer’s excellent book, Overthrow, only one such regime change was initiated by a Democratic president: Kennedy (Ngo Dinh Diem in Vietnam, much to his later regret). Democratic presidents are, however, happy to continue or escalate wars started by their Republican predecessors, or to join in unjust multilateral wars – like Libya (a topic for a different essay).

So why don’t Americans care about foreign policy? I have some ideas, but don’t know for sure. Judging from my friends, family, and what I see and read, most people just don’t have the bandwidth in their lives to pay attention enough to care. A recent book about civilian deaths at U.S. hands around the world, The Deaths of Others, by John Tirman, a scientist at MIT, makes a similar claim, among others.

I hope that most people would in fact care about the effects of our foreign policies on unwitting civilians (and now our own citizens in some circumstances) around the world if they knew what our actions lead to. I do have faith in human goodness. But education about what’s going on is the first step. And when our economy is mired in recession; the presidential race absorbs half the news for two years out of every four years; Facebook and video games, TV, magazines and dating sites, another major chunk of our time; oh, and hanging out with friends and creating families; there’s not much left over for most people to get up to speed on what’s really happening in our foreign policy.

It also seems that when U.S. citizens are the victims of our aggressive actions that more Americans should start to wake up. I applaud Ron Paul for his principled criticism of the Awlaki assassination and other U.S. foreign policy actions.

My hope is that the Arab Spring and movements like the Occupy Wall Street protests in the United States, both heavily involved with social media in terms of information and organization, will continue the Sunshine Revolution here at home. The long-term trend toward more and more open democracy, and increased human rights and living standards around the world, does seem clear. That, in itself, is encouraging. And, eventually, we may actually hold our leaders to account for their actions abroad as well as at home.