> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.
> The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.
What part of the Constitution are we ignoring?
According to the Constitution, the President is the Commander in Chief of the armed forces. The Constitution does not say that war must be declared for the armed forces to operate. Thus, ordering a drone strike without Congress' input would seem well within the scope of the President's powers.
Congress has the power to declare war. But Congress has also passed the War Powers Act which states the President can use the military for short periods of time. Are you claiming the War Powers Act is unconstitutional?
The War Powers Act is exactly the type of law that the Supreme Court has been going after. Bills that give power that was meant for one branch of government to a different branch, or abrogating that power.
The problem with SCOTUS going after these laws is that they are a matter of practicality. If an attack is launched on the USA, the military and the President aren't going to sit back and let it happen, they will act.
When the constitution was drafted, time delays necessitated that the military and the President act autonomously for the most part. Congress couldn't convene rapidly enough to expect them to have much say in all but the largest and most drawn out conflicts.
The War Powers Act is codifying this implicit power. The framers never considered a situation where the President and Congress is watching a conflict play out across the world in real-time and making decisions. So it's literally impossible to say how they wanted this to be handled. That's why they gave Congress the powers to write laws.
And yet, now here we are in the 21st century, where it feels like we're on the opposite side of the time delay problem. Instead of the War Powers Act, what if we allowed congresspeople to use PEKs to vote by proxy in the case of an emergency (definition needed)? Surely that would be better than creating a all-but-in-title king out of the executive branch as concerns conflict?
The security issues around that are similar to the issues with electronic voting and have been covered exhaustively. You're creating the absolutely juiciest target for hacks and espionage. I would say they could meet by remote teleconference but that has issues now too with deep fakes getting better and better.
On a similar note the communication time has vastly narrowed but so has the ability to perform attacks.
Banning bills that transfer powers around government would also hamstring regulatory agencies, wouldn't it? While there are some other rules in place, agencies making law is fundamentally a transfer of power from the Legislative branch to the Executive.
The War Powers Act is questionable. The US never declared war in Vietnam. The president simply sent troops to Vietnam knowing that they would end up fighting. But the president said he had that authority as commander-in-chief. The War Powers Act was supposed to address that.
If the president actually has the authority to send troops into combat without a declaration of war, then Congress can’t take it away from him, just like Congress can’t make it illegal to veto bills.
The War Powers Act doesn’t really set any punishment for the president if he ignores it. It effectively says that if the president does certain things (consult with Congress, follow certain timelines, issue reports) then Congress won’t complain. Presidents have generally followed those procedures without admitting that’s what they’re doing (they issue reports “consistent with” the Act, but never admit the report was required by the Act). But if a president completely ignores those requirements, Congress has to figure out what to do about it; which is exactly what would happen if the Act didn’t exist.
There is a certain amount of deliberate ambiguity to Article I Section 8 -- take a look at e.g. https://avalon.law.yale.edu/18th_century/debates_817.asp and you can see that the wording "The Congress shall have power to [...] declare war" was revised from "make war" in the earlier drafts. Madison clearly felt that Congressional authorization was on some level required to conduct a war, but that the Executive should be free to act quickly in self-defense, e.g. to repel an invasion.
Like a lot of things, this seems to fall under the idea of "convention" and not law. This has been an ongoing problem in recent times. Practically speaking, Congress is a rubber stamp for matters of war.
Theoretically, they can withhold funding from the military. But seeing as the Treasury Department falls under the President, it's unlikely they can actually do that.
"Withhold funding from the military" it's actually better (or worse) than that. The US doesn't have a standing army technically speaking, it cannot constitutionally. The post war military has been continuously reauthorized twice yearly since the end of world war 2. Congress can refuse to reauthorize continuation of it and the treasury can't do anything about it.
Legally though the power of the purse also lies with Congress. If we're throwing in extra constitutional actions all bets are off though because we're no longer bound by the rules of what is allowed and it's down to the old power of might making right.
There hasn't been a single year of my life where US armed forces weren't killing someone somewhere in the world. The US military has been involved in armed conflicts around the globe in nearly every year since WWII but it hasn't declared many wars.
The current standing precedent/law is the President only has to notify Congress within 48 hours of an action and must remove troops within 60 days if Congress has not approved an extension. Formal declarations of war are separate from short military actions legally. It's an extremely messy part of constitutional law precisely because of the split between the power to do and the power to authorize.
>If not, it's policing then it's under the judiciary authority, not the president.
Wait, what? Executive branch pretty explicitly encompasses enforcement. The Justice Department is part of the Executive branch.
Unless by "Judiciary authority" you meant the Justice Department, and not the Judiciary branch of the federal government, and by "not the president" you were very specifically discussing the semi-independence the Justice department has from the president.
Federal (and state, and local) law enforcement are not empowered to kill. Their job is to bring defendants to trial, where the judicial system determines innocence or guilt and then determines the sentence.
If they were, the whole cop-killers, BLM, excessive use of force issue would not be an issue. The law would just say "Okay, a cop killed someone, that's their job, get over it." You can argue that the criminal justice system is too light on cops, but the fact that the criminal justice system is even involved means that killing people is not part of a cop's official job duties.
Qualified immunity is used as a defense in a lot of these cases.
Practically speaking, law enforcement does have broad authority to kill people. So long as that death falls under the training guidelines written by the department, then it's unlikely the officer in question will face any punishment.
Now, killing a person might be seen as a violation of their civil rights, entitling their estate to compensation for the death. But that's a punishment for the state, not the individuals involved.
Citizens, sure. That's a much weaker claim than what the parent said, which is "The President should not be able to conduct drone strikes without an act of Congress".
Drone striking (or otherwise killing) citizens without due process seems unconstitutional. Drone striking foreign targets does not have those constitutional protections.
Killed or targeted? There's a huge difference between ordering a drone strike on said citizens and ordering strike on legitimate military target that said citizens just happen to be in a vicinity of.
Can you give an example of a time when a "legitimate military target" needed to be killed so immediately that a unilateral presidential decision that also killed nearby citizens was warranted? My presumption is that there are very few circumstances where the threat of a military target is so immediate that killing nearby innocent civilians is justified over waiting to try to find a better time to attack the target. If anything, immediate threats that require action are generally threats to the nearby innocent civilians themselves, which would make such decisive action not particularly useful; I don't think anyone would suggest something like blowing up a bank where people are being held hostage, which seems like the closest hypothetical I can think of.
I would argue that the US law would not allow the president to order strikes like those that have occurred in Gaza on US citizens, but of course IANAL. I don't have any knowledge of what Israeli law allows or doesn't allow though.
It's also worth noting that what someone thinks is legal is not necessarily what someone thinks _should_ be legal; I imagine that almost everyone here has at least some laws that they disagree with, but that's separate from the question of whether the law exists or not.
Enemies are not static they can react to our policies. If our policies are never to kill anyone who is near a civilian, enemies would just always be near civilians.
Drone strikes on foreign targets are most analogous to the historical practice of issuing “letters of marque and reprisal,” which allowed private actors (privateers) to act on behalf of the state to take out pirates.
Issuing such letters is an enumerated power of Congress, not the Presidency. So if the President does so unilaterally, they are acting outside their Constitutional authority.
The risks of abuse to military power are real and significant, which is why the power was placed in the body closest to the people - so that such actions would be consistent with the public will.
> The Constitution does not say that war must be declared for the armed forces to operate.
Yes it does, by reserving for Congress the right to declare war. Obama's drone strikes were carried out under the 2001 AUMF against al-Qaeda and the Taliban.
The president now has legal authority to do whatever he wants.
At the same time, the president's agencies no longer have the authority to do whatever they want.
So I guess the president can order the military to drone strike the FCC if he wants at this rate. I don't see what influence the Constitution is still going to have at this point.
While I don't agree with the strikes, such action was generally authorized by Congress (thanks to the "war on terror") which was never since rescinded by Congress. So was not unconstitutional.
The constitution clearly says that a declaration of war is needed, and only short periods of action that are necessary in the interim can be taken by the president absent that. Congress does not have the authority to simply pass a law invalidating that. They did it, but it is most certainly not constitutional.
> Congress does not have the authority to simply pass a law invalidating that. They did it, but it is most certainly not constitutional.
The ones that should judge if it's not constitutional just passed judgment stating that a ex-president is above the law. I think they can invalidate if a president explicitly needs declaration of war, given recent history I'd bet a lot they would find it totally constitutional.
Then the question is whether the law passed by Congress was unconstitutional, which would have nothing to do with Obama. First someone with standing would have to challenge the law and then it would make its way up through the courts. But I'm pretty sure the Supreme Court would uphold it (as much as I would want it struck down along with the Patriot Act and other "war on terror" measures).
There is the 2001 Authorization for Use of Military Force that a lot of the expanded War on Terror activity are nominally authorized under according to the Executive. Challenging that is up to Congress as afaik there's no standing for a random person to sue.
And Congress notably passed the dang thing and has pointedly refused to come back and limit it or curtail the admittedly expansive interpretations subsequent presidents have made of it, so I very much doubt they're going to ding a given president now.
Correct there's been several attempts to revoke or limit the 2001 AUMF and Congress has decided not to each time. It's pretty clear what is being done under the auspices of it too so failing to address the interpretation becomes a tacit endorsement at least at the institutional level. Personally I think it's been stretched to breaking but the fix is pretty simple and up to Congress.
I take your point, but quick action is occasionally necessary. Presidents knowing that their actions could be second guessed are more likely to use the minimum force needed to achieve an objective.
Great rhetorical question, but do consider these points:
1. we ask everyone to do their individual jobs. In a soldier's case, loss of life is a job hazard. In the President's case, making tough decisions that could kill soldiers and civilians is a job hazard
2. The assassination rate for US Presidents is 8.7% (4/46 Presidents were assassinated).
3. There were 1,922 US combat deaths in Afghanistan (ref 1) and at the peak of the war, there were 100,000 troops there (ref 2). If you ignore all the other years of deployment, a US soldier's death risk in Afghanistan was 1.9%
Numbers are hard when they go against our intuition, but every US President is taking a comparable risk to being a soldier according to these numbers.
Obama took the risk of being a President while Black
Trump took the risk of being a President while Orange
Not less than the average sacrifice a soldier made. The average soldier would not sign up if they had a significant chance of going to prison afterwards.
Yes it's too much to ask every president to significantly risk jail time for being president.
yes, because throughout history this has been abused. This was the reason that Caesar crossed the Rubicon - his opponents were all queued up to sue him into oblivious on his term as counsel ended.
Because we need governments and can't afford to make it so that anyone who ever wins elections spends the rest of their life fighting off lawsuits. Wars happen, and governments exist, people forget that laws are used as much to impede good governance as they are to enforce good governance.
What would be the consequences if we did allow Presidents to be prosecuted and some of them did spend the rest of the life fighting prosecutions?
It seems to me the consequence would be that we would have Presidents who act carefully to not break the law. Are there any other consequences?
I've heard it said that "democracies are where the people in power lose". We've all seen "democracies" where the party in power never loses; those aren't real democracies. Likewise, I would say nations that are truly governed by law are where those in power face legal prosecution.
(Also, what's so bad about prosecution? If a person is innocent, the legal system will find them to be innocent, right?... Right?)
And what's the consequence of that? Presidents who are extra careful to obey the law because they know they will be highly scrutinized?
All this seems so rooted in "what do we owe the President?" while my questions here are more assuming the President is a servant of the people and is thus making a sacrifice to serve the nation and is willing to accept the risks that comes from making hard choices while being subject to the law.
There are good and competent people who say "I'm willing to be President and be subject to the law, I'm willing to do both". Why can't be pick a President from that group?
Because doing so gives the President tons of incentives for bad behavior. It's a fun case where "risk of prosecution" would result in tons more questionable behavior then less.
Then, what are american solidiers doing in Jordan dying out there. The reality is that we are sending troops using loopholes, and that's costing such unnecessary complexity.
So the US has to declare war on Russia and China in order to support Ukraine and Taiwan? Declaring war on those superpowers would be a serious act of aggression and start WW3.
> As the Supreme Court concluded, the United States is in an armed conflict with al-Qaeda, and Congress’s 2001 Authorization for the Use of Military Force—along with the president’s commander-in-chief authority under Article II of the Constitution—provides ample domestic legal authority to conduct military operations against al-Qaeda.
tl;dr: We haven't been ignoring the Constitution for a very long time.
The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.