As a moral question, this is appalling in so many ways that it is hard to know where to begin. Glen Greenwald put it best: " Obama's now asserting a power so radical -- the right to kill American citizens and do so in total secrecy, beyond even the reach of the courts -- that it's 'too harsh even for' [David Rivkin,] one of the most far-right War on Terror cheerleading-lawyers in the nation." If the U.S. government can do this, is there anything they cannot do?
As a question of history, or politics,or institutional competence, however, this is a far more difficult question.
Think first about what the litigation is asking the federal court to do: to stop a sitting president from doing what he intends to do. Against a Muslim. At a time of war. All three factors make this case a slam dunk. Or so it seems. Take them one at a time.
First, here is a sitting president, unpopular as he may be, looking for people around the world to kill them. Hopefully bad people. And we are asking a federal judge to stop him, the commander in chief, from doing exactly that. Think about that for a second. While you are at it, think about a federal court to ask a president to deliver a signed commission, or a court asking local registrars to register voters, or asking a state to stop segregating students on the basis of race. These are hardly insignificant things. We have grown so accustomed to a view of judicial power as analogous to judicial supremacy that we hardly blink when asking courts to take on any and all political actors, for all kinds of reasons -- even constitutional reasons.
Here's an example: the president takes over the steel mills during war time. What makes us think that the courts would not only side against the president and order him to stop, but more importantly, what makes us think that the president would in fact comply? Now, this is not to say that the president should not comply; rather, it is to say that these situations involve strategic calculation sin the part of all parties involved. That President Truman in fact complied with the Court's decision in Youngstown is interesting not because of what Justice Jackson's concurring opinion said, but because the president did not follow a different course of action.
The recent Guantanamo cases -- Rasul, Hamdan, and Boumediene are similarly interesting. When the Court told the president that these detainees had in fact a statutory right to habeas rights, the 2006 Military Commissions Act took it away. The Court then struck down the president's military tribunals, only to see them reinstated by Congress. The signals could not have been any clearer. But the five member majority was undeterred. In Boumediene, the majority concluded that those parts of the Military Commissions Act that stripped U.S. courts of jurisdiction over habeas petitions filed by foreign nationals held in Guantanamo were unconstitutional. Tellingly, President Bush responded that he would abide by the ruling, while explaining that "[i]t was a deeply divided court, and I strongly agree with those who dissented."
These are remarkable cases. The quick and easy answer -- too easy, in my view -- is to say that the Court is simply enforcing our constitutional pre-commitments. Add to that a word about the rule of law, coupled with a spoonful of sugar and a cite to Marbury v. Madison and U.S. v. Nixon, and the deed is done. But this is too easy. Think for a moment about the fact that, after every rebuke by the Supreme Court, the president responded not by assertively defying the court's authority, but by asking Congress for help. This is no small feat, both on the part of both the Court and the political branches.
The second point only complicates matters. In these cases, the federal courts are coming to the defense of persecuted racial and political minorities in this country. Greenwald alludes to this when he writes:
"What I've found most disturbing about this controversy from the start is how many Americans are willing to blindly believe the Government's accusations of Terrorism against their fellow citizens -- provided they're Muslims with foreign-sounding names -- without needing to see any evidence at all."
Think about this for a second: when has the Court ever sided with the interests of minorities, and how do we explain those rare moments when it does? The best explanation to date is Derrick Bell's classic "interest-convergence" theory, which argues that the Court sides with the interests of people of color when they converge with the interests of whites. This is why this explanation reminds me of the classic defense of Brown, not as a commitment to civil rights but as a cold war imperative. This makes the Guantanamo cases intriguing, as well as Mr. Awlaki's.
The third point takes us in the same direction. Would the federal courts choose to interfere with the ongoing war on terrorism?
In the end, I would hope that our Constitution prevents the president from carrying out his "assassination program." But I am not holding my breath.