Holder argues that following 9/11, Congress authorized the president "to protect the nation from any imminent threat of violent attack." Because Al Qaeda operates around the world, Holder said, the rules of conventional warfare no longer apply. "The president may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war—even if that individual happens to be a U.S. citizen," Holder said.
Candidate Barack Obama promised to chart a different course. Once in office, he set out to improve relations with the Muslim world, repair America's image abroad and renounce the cowboy diplomacy that had defined foreign policy under President George W. Bush. Obama banned torture and extraordinary rendition and tried to make good on his promise to close Guantánamo and try detainees in federal civilian courts. But Congress blocked him. However, when it comes to drone strikes, the president has outpaced Bush, expanding the program, which had previously focused only on Pakistan, to include Yemen, Afghanistan and Somalia.
The Bush administration was criticized for warrantless wiretapping and indefinite detentions without charge or trial, but Obama has been given a pass for his aggressive measures. The same Democrats who railed against the prior administration's policies have remained silent on Obama's decision to ramp up drone strikes and use targeted killings.
Republicans have a different conundrum. Given their hawkishness and persistent claims of Obama's weakness on war and terrorism, they can hardly complain about his overzealousness in prosecuting the war against Al Qaeda.
But the rumblings of discontent over this administration's blank check for war are growing louder. The wrongful-death lawsuits are the most prominent example, but the U.S. also stands alone on the drone issue. In predominantly Muslim nations, American antiterrorism efforts are widely unpopular, and in 17 of 20 countries, more than half disapprove of the drone attacks.
"I used to joke, 'If they can hold you indefinitely without judicial review, why couldn't the administration also carry out targeted killings without judicial review?'" says Jaffer. "Now that's no longer a rhetorical device. It's reality. It's hard to imagine any more extreme claim of authority than the power to order the killing of American citizens without judicial process."
Obama defended his policy in a September 5, 2012 interview with CNN. "I think there's no doubt that when an American has made a decision to affiliate with Al Qaeda and target fellow Americans, there is a legal justification for us to try to stop them from carrying out plots," he said. "It's very important for the president and the entire culture of our national security team to continually ask tough questions. Are we doing the right thing? Are we abiding by rule of law? Are we abiding by due process?"
The U.S. established precedent for taking out an enemy leader 70 years ago with the targeted killing of Japanese naval commander Isoroku Yamamoto, who planned and executed the attack on Pearl Harbor. When Yamamoto's plane was tracked to an island in the South Pacific, President Franklin D. Roosevelt approved the order to shoot it down.
Jaffer says that while there is no moral distinction between ordering the killing of a U.S. citizen and a noncitizen, there is a legal distinction. "Americans plainly have rights protected by the Constitution, including the right not to be deprived of your rights without due process of law," he says. "The law generally requires that there be an imminent threat and that the use of lethal force be a last resort. Was Al-Awlaki an imminent threat or simply an ongoing threat?"
More than a year before his son's death, Al-Awlaki's father, Nasser, asked a judge to outline the circumstances under which targeted killing could be authorized. The case was dismissed because Nasser did not have standing to sue on behalf of his adult son. Nasser is now suing the government for wrongful death on behalf of his son's estate.
"If this case can't be heard, then courts are saying the political branches can decide which Americans are associated with terrorism and can be killed—and these decisions can be done in secret," says Jaffer. "That's an astonishing and dangerous proposition and an unchecked investment of power to a president."
In an effort to take responsibility for each death, Obama is said to decide personally who is targeted for killing and approve every major drone strike in Yemen and Somalia. But should any president be granted such power, regardless of his judicious consideration? Any power given to Obama will be used by presidents who follow him in office. Would liberals be quiet if a President Romney made these calls? That possibility obviously concerned the president. In the weeks before the election, the administration developed rules for the targeted killing of terrorists by unmanned drones so that a new president would inherit clear standards and procedures.
But even Obama acknowledged that drone strikes are not a long-term solution to terrorism. "Our most powerful tool over the long term to reduce the terrorist threat is to live up to our values and to be able to shape public opinion—not just here but around the world—that senseless violence is not a way to resolve political differences," he said, sounding more like candidate Obama than President Obama.
We won't know how a different president would exercise such authority. But we do know that President Obama is unlikely to change course during his second term.