March 20, 2012
To the Members of the 112th Congress:
From my first letter, I have spoken of the need for attention to the Constitution if we are to continue to enjoy the blessings of limited government. It was gratifying, then, to hear the Attorney General say in a recent speech that “our actions must always be grounded on the bedrock of the Constitution.”
The particular action the Attorney General was referring to was the execution of an American citizen without trial, solely on the order of the President of the United States. On the face of it, nothing could seem less constitutional or legal. The Constitution is the framework, the set of rules, that prescribes what the government may legitimately do in a regime dedicated to securing the rights of life, liberty, and the pursuit of happiness for its citizens. These rights exist before and outside the Constitution; the Constitution is meant to serve and preserve them. We never cede them to the government and we cannot be deprived of them without what the Constitution calls due process, which includes trial by jury.
How then could the Attorney General claim that it was constitutional for the President to authorize the execution of an American without trial? I have neglected to mention that the American executed was a terrorist, an American citizen “intent on murdering Americans” and taking a leading role in plotting such murders, as the Attorney General put it. Moreover, the citizen carried on this plotting in places where it was not feasible to capture him for trial. In such cases, when the threat to Americans is imminent, the courts have ruled that the normal procedures of due process do not apply. In this case, “after a thorough and careful review,” the President authorized the execution. According to the Attorney General, citing Supreme Court decisions, this review met the constitutional requirement for due process, and such review will pass constitutional muster in other similar cases involving American citizens.
But how do we know that the American was a terrorist intent on murdering Americans? The executive decided he was. The executive branch acted as judge, jury, and executioner. It thus exercised the powers of the judicial, as well as the executive branch. A fundamental tenet of our Constitution is that limiting the power of the government to protect the rights of citizens requires separating the powers of government. In grounding executive action on Court rulings, the Attorney General ignored the spirit of the Constitution.
What evidence did the executive rely on to order the execution of an American citizen? It relied on intelligence, which includes what a court would call hearsay and would not allow in a trial. We also know that intelligence may be wrong. Was it wrong in the case the Attorney General refers to? We do not know. Nor will we know in future cases because intelligence is secret. Not only is the Attorney General advocating a process that nullifies the separation of powers, he is advocating a secret process that defies our tradition of open trials.
The Attorney General assures us that we should not be concerned. The executive branch orders executions only under “robust oversight.” Congress provides the oversight, “in keeping with the law and our constitutional system of checks and balances.” The Attorney General’s words at this point in his speech are artful. He says that the Executive informs the appropriate members of Congress about the legal framework for its execution of citizens. Some members of Congress are told, apparently, only of the justification of targeting in general, not of the evidence that justifies targeting in any particular case. This would be similar to a judge explaining to a jury what the law against murder means without allowing the jury to hear any of the evidence in the case before them. Would such a proceeding ever be thought compatible with the rights of free men?
In addition, it is the peculiar function of the judicial branch to check and balance the power of the executive branch when the rights of citizens are at stake. Congress, especially the members of the House of Representatives elected every two years, are too close to the passions of the people, too exposed to immediate political concerns, to protect the rights of someone accused of being a public enemy. Again, the Attorney General ignored this fundamental tenet of our constitutional system.
But the Attorney General counsels us further about the Constitution. He admonishes us that, however disturbing the process by which the President comes to order the execution of an American citizen, however contrary it seems to our most fundamental understanding of what a citizen is due—it is necessary. We are at war and in war “real-time decisions” must be made, as opportunity dictates. In these circumstances, the President cannot consult; he must act.
This is true but not relevant in this case. Again, how do we know that the American citizen to be targeted is in fact a terrorist? The Attorney General assures us a thorough review of available information takes place before an American is executed. This takes time. So does collecting the information on which the review depends. The actual execution may occur because of an opportunity that must be seized immediately, but the process that leads to seizing that opportunity unfolds deliberately over time. In this process, is there no opportunity for the judicial branch to play its constitutional role?
Playing such a role does not require a full trial. In 1978, Congress passed a law that established judicial review of the executive branch’s surveillance of individuals, including American citizens, in certain national security cases. This judicial review is carried out without a trial, and has been done with secrecy and dispatch. If judicial review is necessary and possible before an American falls under surveillance, should it not also be necessary before he falls under the gun?
It is good that the Attorney General should acknowledge the Constitution. But it would be better if he and the executive branch were guided by its spirit.