Comencing immediately upon the 9/11 attack, the US government under two successive administrations has spent 12 straight years inventing and implementing new theories of government power in the name of Terrorism. Literally every year since 9/11 has ushered in increased authorities of exactly the type Americans are inculcated to believe only exist in those Other, Non-Free societies: ubiquitous surveillance, impenetrable secrecy, and the power to imprison and even kill without charges or due process. Even as the 9/11 attack recedes into the distant past, the US government still finds ways continuously to increase its powers in the name of Terrorism while virtually never relinquishing any of the power it acquires. So inexorable has this process been that the Obama administration has already exercised the power to target even its own citizens for execution far from any battlefield, and the process has now arrived at its inevitable destination: does this due-process-free execution power extend to US soil as well?
All of this has taken place with very little public backlash: especially over the last four years. Worse, it has prompted almost no institutional resistance from the structures designed to check executive abuses: courts, the media, and Congress. Last week’s 13-hour filibuster of John Brennan’s confirmation as CIA director by GOP Sen. Rand Paul was one of the first – and, from the perspective of media attention, easily among the most effective -Congressional efforts to dramatize and oppose just how radical these Terrorism-justified powers have become. For the first time since the 9/11 attack, even lowly cable news shows were forced – by the Paul filibuster – to extensively discuss the government’s extremist theories of power and to debate the need for checks and limits.
The primary means of mocking Paul’s concerns was to deride the notion that Obama is about to unleash drone attacks and death squads on US soil aimed at Americans. But nobody, including Paul, suggested that was the case. To focus on that attack is an absurd strawman, a deliberate distraction from the real issues, a total irrelevancy. That’s true for two primary reasons.
First, the reason this question matters so much – can the President target US citizens for assassination without due process on US soil? – is because it demonstrates just how radical the Obama administration’s theories of executive power are. Once you embrace the premises of everything they do in this area – we are a Nation at War; the entire globe is the battlefield; the president is vested with the unchecked power to use force against anyone he accuses of involvement with Terrorism – then there is no cogent, coherent way to say that the president lacks the power to assassinate even US citizens on US soil. That conclusion is the necessary, logical outcome of the premises that have been embraced. That’s why it is so vital to ask that.
To see how true that is, consider the fact that a US president – with very little backlash – has already asserted this very theory on US soil. In 2002, the US arrested a US citizen (Jose Padilla) on US soil (at the O’Hare International Airport in Chicago), and then imprisoned him for the next three-and-a-half years in a military brig without charges of any kind. The theory was that the president has the power to declare anyone (including a US citizen) to be an “enemy combatant” and then punish him as such no matter where he is found (including US soil), even if they are not engaged in any violence at the time they are targeted (as was true for Padilla, who was simply walking unarmed through the airport). Once you accept this framework – that this is a War; the Globe is the Battlefield; and the Commander-in-Chief is the Decider – then the President can treat even US citizens on US soil (part of the battlefield) as “enemy combatants”, and do anything he wants to them as such: imprison them without charges or order them killed.