The Supreme Court passed a sweeping but vague ruling last week that gave broad legal immunity to U.S. Presidents for the actions they take while in office. Critics claim that the ruling (which relates to former President Donald Trump’s ongoing election interference case) could drastically restructure the executive branch and its relationship to the rest of the federal government.
Broadly speaking, the Trump vs. United States ruling states that there are different types of legal immunity—both “absolute” and “presumptive”—that a U.S. President enjoys while in office. If the President commits a crime while engaged in his “official” duties, he can be designated legally immune for his actions and will not be prosecuted. The Supreme Court’s decision has obviously confused a lot of people, given the vagueness of its mandate and the inability of the Court, itself, to explain what exactly it just did. Indeed, the question of what counts as “official” activity and when it can be accurately construed as such is sure to be the terrain of legal battles for years to come.
Conservative Justices seem to see the decision as a sensible way to protect the powers of the executive branch, while liberal Justices are much more alarmed. Most notably, dissenting Justice Sonia Sotomayor has given some frightening examples of what she claims will be possible under the court’s ruling: “Orders the Navy’s SEAL Team Six to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune,” she said.
Sotomayor’s “SEAL Team Six” example, in particular, has fueled online claims that the President can now order summary killings of political rivals and Americans.
Is this really true, though? Under the new SCOTUS ruling, what’s to stop Joe Biden from designating his current political rival, Donald Trump, an “enemy of the state,” and identifying his residence, Mar-a-Lago, as a haven for “terrorist activity”? Hasn’t the Court handed the President a license to drone his enemies with only the flimsiest of pretexts? We asked some legal experts about this absurd hypothetical scenario and the result was…not super comforting. Indeed, everyone seemed to have a slightly different opinion.
America’s bad drone-strike policy
It should be noted that it is currently already legal for the President to order drone strikes against American citizens. The Obama administration set up this policy during the War on Terror and it has only been used (to my knowledge) once, in the highly controversial operation that killed religious cleric Anwar al Awlaki and Islamist blogger Samir Khan, both of whom were U.S. citizens, and both of whom (according to the government) were high-level members of al-Qaeda. Still, even if the law has seen limited use, critics say the Obama White House set a dangerous legal precedent that tramples on constitutional rights and could be abused in the future.
Jeff Rogg, a senior research fellow with the Global and National Security Institute at the University of Southern Florida, said that the drone policy that was used against al Awlaki and Khan involved “murky constitutional law elements” and was carried out in a way that lacked transparency for both the public and the courts. Rogg described this policy as an example of “executive fiat” that was left “up to the discretion of the President,” and that lacked sufficient judicial input.
Indeed, the legal bedrock of the Obama policy is difficult to understand. It finds, as its basis, the Authorization for the Use of Military Force (AUMF), the law adopted in the wake of the 9/11 terrorist attacks that legalized many aspects of the global War on Terror. As part of those AUMF powers, the Obama administration claimed, in 2011, the legal right to take out threats to America’s homeland, including U.S. citizens, without constitutional concerns like due process. It then claimed, in the case of al Awlaki, that it couldn’t share information about his case due to national security concerns.
In the wake of al Awlaki’s killing, and after much acrimony from civil rights groups, the Obama White House released a redacted version of its policy. The document states that, in the event “that the suspect who has been nominated [as a terrorist threat] is a U.S. person, DOJ shall conduct a legal analysis to ensure that the operation may be conducted consistent with the laws and Constitution of the United States.” It also lays out a set of stipulations for what conditions must be met before the target can be “taken out”:
The preconditions set forth in Section I .C.8 for the use of lethal force are as follows: (a) near certainty that an identified HVT [“high-value terrorist”] is present; (b) near certainty that noncombatants will not be injured or killed: (c) [This section redacted] an assessment that capture is not feasible at the time of the operation; (d) an assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and (f) an assessment that no other reasonable alternatives to lethal action exist to effectively address the threat to U.S. persons.
This policy remains in place. Jonathan G. D’Errico, a New York attorney, wrote in a 2018 paper for the Fordham Law Review that Obama’s policy ignores basic constitutional protections for American citizens, and is still an ongoing issue for Americans:
Currently, no legal regime provides answers or guards against the infringement of procedural due process the next time the executive determines that an American citizen must be executed to protect the borders of the United States. The executive remains free to unilaterally target and execute an American citizen via drone strike without the formal process that typically accompanies a death sentence under U.S. law. Protected under the aegis of national security, executive discretion has trumped the procedural due process rights of American citizens.
Indeed, after the Al Awlaki operation, multiple lawsuits attempted to determine that the Obama administration had acted illegally, but the courts where the litigation was filed refused to pursue it. The judicial system essentially washed its hands of the challenges, claiming the matter was up to the government to decide. This disturbed some legal experts, while others have argued that the White House’s policy was largely limited to the al-Awlaki operation itself, and thus doesn’t pose an ongoing threat to Americans writ large. One such critic notes: “The definition of the group of citizens covered is so narrow, in reality, that it has so far described a universe of exactly one person–Al Awlaki–whom the administration has claimed the authority to target.”
However, it seems obvious that just because the law says one thing today, that doesn’t mean it can’t easily say something different tomorrow. I mentioned to Rogg that the Obama policy seems like it was pulled out of thin air to serve a political purpose. If an administration can just wholly invent such a disruptive, constitutionally problematic policy, what’s to stop the next administration from expanding the policy, or inventing a new one?
“Nothing,” said Rogg. “Nothing is to stop the [next] President [from doing this again], because this is unsettled constitutional law,” he said, referencing the murky legal terrain that the government’s argument rests on.
When it comes to the recent Supreme Court decision, Rogg says that one problematic element of it is that it could “make a President more cavalier [in their national security activities], because of the presumption of immunity, where they [the court] just stamp something as an ‘official act.’”
“Not only misguided but dangerous”
Legal experts we spoke to about the recent SCOTUS decision said that it didn’t change the already existing legal powers that the President enjoys–such as the ability to conduct drone strikes against Americans. Hina Shamsi, the director of the ACLU’s National Security Project, said that the Supreme Court’s decision “doesn’t change anything about a president’s legal powers. As we’ve long maintained, the U.S. program of lethal force abroad outside recognized war zones is unlawful. Now, a majority of the Supreme Court has said a president would have immunity for violating criminal laws with that power.” The ACLU was one of the organizations that originally sued the government over al Awlaki’s killing.
Another legal scholar, Liza Gotein, who is a senior director of the Brennan Center for Justice’s Liberty & National Security Program, said that, while the idea of the killing of a political rival may be technically possible, it seems unlikely that the President would attempt or, more importantly, get away with such activity. She said that what the court is doing is “removing the deterrent of criminal prosecution and essentially immunizing the President personally for criminal actions” in what she considers “a radical misreading of the Constitution and something that could have pretty horrendous consequences.” But she still thinks we’re talking about a highly improbable scenario because the President needs accomplices.
“Unless the President is going to pick up the gun and go shoot someone himself…I don’t think that’s necessarily” something to worry about, she said. “He may be immunized, but whoever carries out the order is not.”
“But couldn’t the President order a killing and then pardon everybody involved?” I asked.
“Well, he could certainly try,” said Gotein.
“Assassinating a political rival would violate the Constitution,” Gotein claimed.
But Gotein’s reading doesn’t seem to take into account the fact that the government has already claimed the right to assassinate Americans without any constitutional due process—albeit in a limited way.
Gotein also pointed out that when it comes to the “domestic deployment of the military,” that is a power shared by both the President and Congress. In other words, it would not fall under the purview protected by SCOTUS’s new “absolute immunity” ruling, since that immunity only relates to actions exclusively taken by the President himself. However, the President might still have “presumptive immunity” for that activity, she added. Gotein also admitted that she could see a scenario in which White House lawyers would make a legal argument that departed greatly from her view.
“The Court has essentially held that the President is above the law when it comes to committing a whole raft of crimes, as long as those crimes can be construed as happening while he was engaged in official [presidential] actions,” said Gotein. “I think that principle is not only misguided but dangerous, for the rule of law and for democracy.”
Gotein added: “I think the concern [about the ruling] is that it could embolden a President who has so little regard for the rule of law that the only thing that would prevent him from violating the law would be fear of personal consequences.” She continued: “There is a lot that is unclear, in the wake of this decision, about what actions will qualify for absolute immunity, and also what it will mean to have presumptive immunity. There are a lot of gray areas. One hopes that a President won’t want to roll the dice and test whether there was immunity” in the system.
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