The constitutional difficulty with President Obama's drone strike policy

That topic is explored by Michael Ramsey over at The Originalism Blog: Originalism and Drone Strikes. (Hat tip to Instapundit.) As Ramsey argues, the president's assertion of the right to kill American citizens who are not posing a direct and immediate threat to the United States is in conflict with the 5th Amendment of the United States Constitution. Read his entire analysis -- it is chilling reading.

As Pat Buchanan comments on President Obama's policy:

According to a Justice Department “white paper,” any “informed high-level official” can decide a target is a ranking operative of al-Qaida who “poses an imminent threat of violent attack against the United States,” and if we cannot apprehend him, order him eradicated with a Hellfire missile. 

As law professor Mary Ellen O’Connell argues: “For a threat to be deemed ‘imminent,’ it is not necessary for a specific attack to be underway. The paper denies Congress and the federal courts a role in authorizing the killings or even reviewing them afterwards.” 

And they called Nixon the imperial president. 

As killing a U.S. citizen is a graver deed than waterboarding a terrorist plotter to get information to save lives, Obama, who bewailed Bush’s detention, rendition and interrogation policies, appears guilty of manifest hypocrisy. 

But with 3,000 to 4,500 now killed by drones in Afghanistan, Pakistan, Somalia and Yemen over 10 years, and an estimated 200 children and other civilians among the “collateral damage,” it is past time for a debate on where we are going in this “war on terror.”

More than hypocrisy, though, the serious charge is that the president is refusing in this instance to comply with the 5th Amendment, one of the cornerstones of the Bill of Rights. Such a refusal to comply with the Constitution implicates the very notion of the rule of law, for as Buchanan points out, the president's policy denies the rightful power of the courts or Congress to pass any judgment on the killing. Thus, we arguably have a president threatening freedom in two ways:  1) by authorizing extrajudicial killings of American citizens who pose no immediate threat to our country; and 2) by subverting the checks and balances of our constitutional order by refusing to submit his actions to the judgment of the courts and Congress.  It is difficult to imagine more serious charges against an Administration and its policies.

Related items:

• The Pittsford Perennialist links favorably to this call for the Congress to begin the impeachment process against President Obama:  Why Obama Should Be Impeached. Impeachment would be an extreme measure, and one that has never been successfully used against a president before.  Hopefully the regular processes of our republican democracy will be sufficient to restore the security of our nation under the rule of law, without resort to articles of impeachment.

• Jacob Sullum asks a very good question over at Reason.com:  Does Obama Think He Can Order Hits on Americans Inside the U.S.?