While weaponized drones have heralded a new frontier of warfare, the system of power under which they are deployed is a very old one indeed. In fact, it is archaic. I mean this very specifically. With his ability to extrajudicially determine which individuals will die, President Obama exerts a sovereign power more like that of a 15th Century monarch than a contemporary democratic leader.
On Monday, the ACLU filed a disclosure lawsuit, demanding documents including those that detail the criteria for placing an individual on the president's "kill list." As the U.S. is poised to spread its campaign against the Islamic State beyond the borders of Iraq and Syria, the importance of greater transparency around how and who the U.S. kills can't be understated.
While deliberations over drone targets remain shrouded in dense secrecy, the Obama administration is asking that we simply trust that "kill list" reasoning is just, that the targets need to die, and that civilian casualty is avoided at all costs. Premised on an article of faith in the divine right of kings, Ancien Regime rulers were bestowed with the power to put a person to death at will. In 2015, a world leader should not be permitted to exercise the same power over death, with blind public faith in his use of sovereign power.
He may have won his first presidential election on empty platitudes of Hope and "Yes We Can" (what exactly We Can do remains unclear), but the American war machine should not run on something so dangerous as Faith.
From what we can piece together from reports and a partially leaked, then released, Justice Department memo, we have good reason to distrust the reasoning behind many drone strikes. The ACLU's 2014 victory in the second circuit court of appeals forced the DoJ to release much of a memo justifying the drone strike killing of U.S. citizen Anwar Al-Awlaki. It contained dangerously vague, non-specific references to "imminence" and "self defense." If the release of further documents reveals similarly weak "kill list" logic, it's crucial that we see this.
These documents exist not simply as guides for the executive to follow when choosing drone targets. They serve as rubber stamps to quite specifically make legal what is extra-legal. Official guidelines and DoJ justifications create a framework of due process around the president's extraordinary sovereign powers here. When this framework is loose, executive power is unchecked, and the line between president and dictator is potentially blurred.
Perhaps, if the ACLU is successful, we will discover that "kill list" criteria are strict, well reasoned, and conscientiously applied. While the processes remain mired in secrecy, however, we can't even judge. (But would do well to assume the worst, based on the little information we do have.)
Extraordinary executive power is nothing new and had always been rationalized by recourse to a circumstance being urgent and exceptional—what philosopher Giorgio Agamben called a state of exception; this almost always means when there is a state of war. I regularly refer to how Lincoln authorized the chief of the Army to suspend the writ of habeas corpus whenever it was deemed necessary along military lines between Washington and Philadelphia in 1861 in advance of congressional approval. Extraordinary power indeed.
Since we are enmeshed in a boundless, borderless War on Terror, a wartime state of exception is now our consistent, normal state. And a Commander in Chief can now always point to an imminent threat to justify exercising extraordinary powers.
Every time the president extra-judicially determines that a person be killed, a state of exception enabling him to do so is assumed. A key difference between executive power and an absolute sovereign power is that traditionally, the sovereign did not need to justify the decision to put someone to death; the king's will was the divine will. The executive, meanwhile, is expected to justify the use of sovereign power over life and death.
The president should not be a king, and the sovereign power now should reside in the will of the people. If the Obama administration continues to choose who lives and dies without feeling the need to adequately justify these choices to the public, the president—and future presidents—can act like a divinely empowered king. And I had thought America had a strong line against that sort of thing.