Targeted killings: Who’s checking the executive branch?

During a recent Senate Judiciary Committee hearing, Chairman Patrick Leahy and Atty. Gen. Eric H. Holder Jr. appeared to share a chuckle over issues related to the targeted killing last year of an American citizen by the United States. According to news reports, Leahy good-naturedly reminded the attorney general that his committee was still waiting for a copy of a classified Department of Justice memorandum in which the killing was justified on statutory and constitutional grounds.

With a smile and a laugh, Holder acknowledged that there was disagreement within the administration about whether to honor Leahy’s request. Some observers expressed surprise that he would even acknowledge the existence of such a memo, let alone suggest that anyone would consider giving it to Congress.

A United States citizen, suspected terrorist Anwar Awlaki, born in New Mexico, died in a U.S. drone strike in Yemen in September. One would hope, of course, that when the killing of one of our own citizens was proposed, it would have warranted a legal analysis, in writing — and apparently it did. But the mirth over Congress’ entitlement, or lack thereof, to the memo is a sad commentary on the current state of separation of powers between the executive and legislative branches.

The courts have recognized repeatedly that in order to perform its basic constitutional responsibilities, Congress can and must acquire information from the president and the departments and agencies of the executive branch. The fact that the memo is highly classified is no excuse, nor is it likely to fit within the very narrow doctrine of executive privilege, as enunciated by the Supreme Court. So Leahy would be within his rights to be piqued.

But is Congress getting or not getting this memo really the point here?

Holder has publicly outlined the memo’s bottom line, and he has likely given more detail in closed session committee briefings. But shouldn’t Leahy ask his own legion of lawyers, who are at least as competent as those in the executive branch, to assess the state of the law for him?

Here, in a nutshell, is what they would probably find: First, the Supreme Court has not ruled (yet) that the due process clause of the Constitution prohibits the executive branch, without judicial review, from targeting and killing an American outside a war zone. Second, there are no statutes on the books that prevent the president from ordering such an action. Third, any executive orders or other policy statements that might be interpreted to preclude such a killing do not bind the president. Finally, it may be that the justification of self-defense is sufficiently strong to answer the moral and ethical questions, (although we do not know the details of the administration’s position).

So, Sen. Leahy, now you can stop asking for memos that you neither need nor are likely to obtain, and get to work. In the 1970s, Congress did just that, taking a hard look at the excessive intelligence activities of agencies within the executive branch. It did not like what it found, nor did the American people.

Months of hearings by select committees of the House and the Senate resulted in new laws limiting, most notably, the power of the executive branch to target American citizens. Back then we were outraged that our phones could be tapped without a judge’s order, so Congress enacted the Foreign Intelligence Surveillance Act of 1978 to require judicial oversight. Regarding targeted killing, pressure from Congress got President Ford to issue an executive order prohibiting assassinations altogether, though we were killing only foreigners in those days.

So now we are targeting not just the phones but the lives of Americans, and there is no constitutional doctrine, statute or executive order addressing the issue. This is where the framers would have expected the legislature to take a good, hard look.

The framers — political realists one and all — would not be surprised, however, by the deafening silence on this issue from Capitol Hill. Presumably, the Republican majority in the House is in favor of the aggressive policy, and the Democratic majority in the Senate may be reluctant to lead the charge against a policy embraced by one of its own in the White House. But Leahy wants to do something, so he is checking the oversight box by publicly asking for memos, rather than holding hearings to examine whether, once again, we may need legislation to curb executive branch excesses.

In the 1970s, Congress enacted the safeguard of judicial review before the executive could conduct electronic surveillance of Americans, and noncitizens, inside the United States, not trusting the executive to make those decisions on its own. And in 2008, the law was amended to protect Americans’ phones and email overseas too.

Leahy should redirect his attention from asking for memoranda from the Justice Department to focus his committee’s energy on the real issue facing Congress: Should the president of the United States be able to order the killing of an American citizen with no review outside his own executive branch advisors? Even if Leahy trusts this president to tread cautiously with such enormous, unchecked power, what about the next one, or the one after that?

Vicki Divoll is the former general counsel of the Senate Select Committee on Intelligence, and currently teaches U.S. government and the Constitution at the U.S. Naval Academy.