Finally, there is the broader concern of whether the president even has the right to engage in “targeted killing.” The issue, as Katrina vanden Heuvel argued in a Washington Post op-ed, is “the assertion of a presidential prerogative that the administration can target for death people it decides are terrorists—even American citizens—anywhere in the world, at any time, on secret evidence with no review.” She calls on Congress to “reassert its constitutional authority” to declare war.
The questions she raises are troubling but also muddled. Congress passed a joint resolution in September 2001, authorizing the president to use “all necessary and appropriate force” against al-Qaida. For better or worse or both, Presidents Bush and Obama have invoked that authority with very wide latitude, as was intended. Congress has no further “constitutional authority” to choose or deny targets.
As for the probity of targeted killing, regardless of which branch of government approves it, it is worth noting that President Gerald Ford issued an executive order in 1975, stating, “No employee of the United States government shall engage in, or conspire to engage in, political assassination.” This order came in the wake of hearings held by Sen. Frank Church’s committee, revealing a vast dark landscape of CIA activities in the previous decades, including many attempted assassinations.
Legal scholars have disputed whether Ford’s executive order applied only to the killing of foreign government leaders (it didn’t define “assassination”). In any case, the controversy was rendered moot in 1998, when President Clinton revised the order to allow for the death of such leaders if it resulted from a counterterrorism operation. Clinton’s aides also took to invoking Article 51 of the United Nations charter, which allows nations fairly free rein in the pursuit of self-defense. Those caveats, bolstered by the Authorization to Use Military Force, passed by Congress in 2001, leaves little doubt as to the drone strikes’ legality.
I don't generally agree with Katrina vanden Heuvel on much--I didn't when I was much further to the left than I am now--but even I can recognize that the question she's asking is not about whether there is a specific law that authorizes the president to act as he does, but whether the president--any president--has the right to do so. (This is also different than asking, as Kaplan does in the next section of his article, about whether targeted assassinations are wise--i.e., prudentially) There's no contradiction, so far as I can tell, in asserting the president has the legal right to order assassinations of whomever he wants, but does not have the moral right to do so and, insomuch as the two are in disagreement, the law should be brought to reflect the moral state of affairs. Not least because there are principles that underlie the constitution and the rule of law itself that are threatened by programs such as this one.