Executive Power, Due Process, and the Targeted Killing of American Citizens

A Historical and Constitutional Analysis of the Department of Justice White Paper –
13 years later…
Originally published February 15, 2013
Revised and expanded edition

I. INTRODUCTION
II. WHAT THE DOJ ACTUALLY CLAIMS
III. THE FIRST PROBLEM: WHO DEFINES “IMMINENT?”
IV. THE HISTORICAL QUESTION: WHERE HAVE WE SEEN THIS BEFORE?
V. DUE PROCESS IS THE REAL CONSTITUTIONAL QUESTION
VI. THE WHITE PAPER’S MOST IMPORTANT FEATURE IS NOT ITS TARGET
VII. A NARROW RULE CAN PRODUCE A BROAD PRINCIPLE
VIII. CONSTITUTIONAL GOVERNMENT GOVERNMENT REQUIRES MORE THAN GOOD INTENTIONS
IX. LIBERTY AND SECURITY ARE NOT OPPOSING CONSTITUTIONAL SYSTEMS.
X. THE CONSTITUTIONAL TEST
XI. 2026 RETROSPECTIVE: WHY THE INSTITUTIONAL QUESTION STILL MATTERS

I. Introduction:

There are two ways to analyze a governmental claim of power. The first is to ask what government says it intends to do with the power today. The second is to ask what principle must be accepted for government to possess the power at all and what that principle will permit tomorrow. The American constitutional tradition requires the second inquiry.

Federalist No. 20 states the principle plainly: experience is the “oracle of truth.” The Constitution was not created by men who trusted assurances about how power would be used. It was created by men who had studied what governments had actually done with power across generations. That historical method is essential to understanding the Department of Justice White Paper concerning the targeted killing of American citizens. The question is not simply whether the Obama administration intended to use lethal force only against dangerous members of al-Qaeda. The constitutional question is larger:

What power must the executive branch possess in order to identify an American citizen as an enemy, determine that the citizen presents an imminent threat, conclude that capture is infeasible, authorize lethal force, and then deny the necessity of prior judicial review?

And once that power is conceded:

Who determines whether its stated limitations remain limitations at all?

That is where constitutional analysis must begin.

II. What the Department of Justice Actually Claims

The DOJ White Paper addresses a particular factual circumstance. It states that the government may lawfully use lethal force in a foreign country outside an area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qaeda or an associated force when three conditions are satisfied:

an informed, high-level government official determines that the person presents an imminent threat of violent attack against the United States;
capture is infeasible and feasibility continues to be monitored; and
the operation complies with applicable law-of-war principles.

The Department expressly says that its paper does not attempt to establish the minimum requirements for every lawful lethal operation against an American citizen and does not resolve other circumstances. (Department of Justice). That limitation should be acknowledged accurately. But acknowledging it does not end the analysis. The question is whether the legal principles employed to justify that narrow case remain equally narrow. That distinction is critical. A government may describe an application narrowly while simultaneously establishing a principle of authority far broader than the immediate facts.

History teaches us to examine the principle.

III. The First Problem: Who Defines “Imminent”?

The DOJ’s first condition appears substantial. The targeted citizen must present an imminent threat. Ordinarily, imminence conveys temporal urgency: a danger near enough that immediate action is necessary. But the White Paper expressly rejects the requirement that the United States possess clear evidence that a specific attack will occur in the immediate future. It argues that terrorist organizations operate in ways that require a broader understanding of imminence and that government may have only a limited “window of opportunity” in which to act.

That argument may be understandable as a matter of military necessity. But constitutionally, it creates another question. If imminence does not require evidence of an attack about to occur, who determines when an anticipated threat has become sufficiently imminent to justify the killing of an American citizen? The answer supplied by the White Paper is not a court. It is an informed, high-level official of the executive branch and that fact changes the nature of the protection. “Imminence” is not an external limitation if the institution exercising lethal authority also determines what imminence means, decides whether it exists, and need not first establish its determination before an independent tribunal.

The issue is therefore not whether government officials are necessarily acting in bad faith, it is institutional design. The Constitution does not assume that liberty is secure because officeholders intend to behave responsibly. It structures power on the assumption that human beings possessing governmental authority must themselves be restrained.

IV. The Historical Question: Where Have We Seen This Before?

This is where legal analysis without history becomes dangerously incomplete. For centuries, governments have justified extraordinary power by appealing to extraordinary necessity. The English constitutional struggles that eventually shaped American ideas of due process and executive limitation were repeatedly contests over precisely this problem. Kings claimed prerogative because circumstances supposedly required action unavailable through ordinary legal processes. The Petition of Right of 1628 arose from disputes involving forced loans, imprisonment without stated cause, military power, and claims of executive necessity.

The Habeas Corpus tradition developed because confinement could become effectively unreviewable when government itself controlled both accusation and detention. The English Bill of Rights followed struggles over royal suspension and dispensing powers, the assertion that the executive could determine when ordinary law should yield. The historical details differ from a twenty-first-century drone strike. The constitutional structure of the problem does not. Again and again, government asserts:

The danger is exceptional.
The ordinary process is inadequate.
The executive must act.
Trust that the exceptional power will remain exceptional.

History tells us to test that promise against institutional incentives rather than political assurances. That is why the American constitutional question cannot be reduced to whether one particular President is trustworthy. The power does not belong to Barack Obama. If constitutional, it belongs to the presidency. And powers conceded to one President become powers available to the next.

V. Due Process Is the Real Constitutional Question

The DOJ does not contend that citizenship makes a person immune from military force. Nor should it. An American citizen who actually joins enemy forces does not acquire battlefield immunity by virtue of citizenship alone. The Supreme Court recognized in Hamdi v. Rumsfeld that citizenship does not necessarily prevent the government from treating a citizen as an enemy combatant under lawful wartime authority. But Hamdi also reflects the opposite constitutional concern: executive designation cannot automatically become its own proof.

That is the central problem, a citizen may indeed become an enemy. But who determines that the citizen has done so and what evidence is required? Who reviews the determination and what happens when the government’s intelligence is mistaken? What process exists when the government proposes not merely to detain the citizen, but to make review permanently impossible by killing him? Those questions cannot be answered merely by saying that the citizen’s conduct places him within the laws of war. The power to classify is what requires scrutiny.

VI. The White Paper’s Most Important Feature Is Not Its Target

The most significant feature of the White Paper is therefore not the identity of the immediate target, it is the structure of decision-making. The executive branch may determine:

whether the citizen belongs to the enemy;
whether the citizen poses an imminent threat;
whether capture is feasible;
whether military force is appropriate;
and whether the circumstances permit lethal action.

The Department also argues that prior judicial review is not required for the sort of military judgment described in the paper. That supposition produces a constitutional arrangement in which the institution exercising the power also determines whether the conditions limiting the power have been met. Perhaps every determination will be correct, but history provides little reason to design constitutional government on that assumption.

The question is not whether an executive officer can ever make a military judgment. The President plainly possesses executive and Commander-in-Chief authority. The question is whether an internally defined process can substitute for an externally enforceable constitutional limitation when the consequence is the deliberate killing of a citizen away from a conventional battlefield.

VII. A Narrow Rule Can Produce a Broad Principle

Here is where the distinction between an immediate holding and an underlying principle becomes indispensable. The DOJ repeatedly describes a senior operational leader of al-Qaeda or an associated force. That description may matter. but the legal reasoning also relies upon concepts such as:

enemy force;
associated force;
continually planning attacks;
a broadened concept of imminence;
feasibility of capture;
national self-defense;
armed conflict beyond a traditional battlefield;
high-level executive determination.

The question is not whether those phrases automatically authorize the killing of “anyone anywhere.” They do not. The more serious question is this:

What prevents the categories from expanding once the executive possesses the authority to define their application?

That is the constitutional issue that should concern us. A formal limiting phrase is not necessarily a durable institutional limit. The durability of a limit depends upon who interprets it, who enforces it, and whether anyone outside the institution claiming the power can compel adherence to it.

VIII. Constitutional Government Requires More Than Good Intentions

Americans frequently analyze governmental power through the personality occupying the office. That is a mistake. If one supports the President, extraordinary authority appears less threatening. If one opposes the President, the same authority suddenly appears intolerable. Constitutional analysis must eliminate the personality. Change the President, the political party, the alleged enemy, or the national crisis. Does the power still appear acceptable? That is the proper test because constitutional authority survives elections.

A power accepted under one administration becomes precedent for administrations not yet imagined. The Founding generation understood this problem because they had inherited centuries of experience demonstrating that governmental power rarely remains confined to the original justification for which it was claimed. The essential inquiry is therefore not merely:

What will these officials do?

It is:

What may officials do once we concede this authority?

Our founders knew,

“we are not only to guard against what men will do, but even against what they may do,”

Federal Farmer, no. 8. 3 Jan. 1788

IX. Liberty and Security Are Not Opposing Constitutional Systems

National defense is a legitimate responsibility of government. The Constitution is not a suicide pact, and no serious constitutional analysis requires American forces to wait passively for an armed enemy to strike. But neither does the existence of danger erase the allocation of governmental power.

A constitutional republic must be capable of defending itself without converting necessity into an independent source of authority. The question is therefore not whether dangerous enemies may be fought. The question is whether the executive branch may itself determine that an American citizen falls within the enemy category and then employ irreversible force without meaningful independent review of that classification. History counsels extreme caution.

Every generation believes its emergency is exceptional. Every generation believes the powers demanded by that emergency are temporary. And every generation inherits the precedents created by the last.

X. The Constitutional Test

Before accepting a claimed governmental power, citizens should ask:

What power is being exercised?

Where was that power delegated?

Who determines whether the prerequisites for exercising it exist?

Who reviews that determination?

What happens when government is wrong?

Does the claimed limitation exist outside the discretion of the institution exercising the power?

And finally:

Where have we seen this kind of power before?

That final question is not historical decoration. It is constitutional evidence. A people who forget how governmental power behaved in the past lose the ability to recognize the same institutional pattern when it returns under different terminology, technology, or political circumstances. That is why history matters. “Experience is the oracle of truth.”

XI. 2026 Retrospective: Why the Institutional Question Still Matters

The original version of this analysis was written in February 2013. It is useful now to distinguish prediction from hindsight.

Before the White Paper became public, the United States had already carried out lethal operations in Yemen that killed American citizens. Among them was 16-year-old Abdulrahman al-Awlaki, an American citizen born in Colorado, killed in an October 2011 U.S. strike. Contemporary reporting found that officials initially offered little public explanation; one administration official later said the United States had not known the teenager was present and regarded him as a bystander. (The Washington Post)

The government subsequently maintained that Abdulrahman was not specifically targeted. (American Civil Liberties Union). That distinction is important. There is no basis for claiming from this evidence that the government intentionally selected him for death because of his father. But the episode illustrates the institutional question this article raised.

An American citizen was killed by American military force outside a conventional battlefield. The public did not initially know why. The government controlled the relevant intelligence, targeting criteria, operational facts, and legal analysis. External review was extremely limited. That does not prove every warning made in 2013. It demonstrates why the warning was constitutionally serious.

The relevant question was never simply whether one administration intended to abuse a narrow power. It was whether a constitutional system should permit the institution exercising lethal authority to define the factual predicates, interpret the limiting standards, conduct the operation, and largely control the evidence by which the public could later evaluate what occurred. History suggests that constitutional limits should not depend upon the self-restraint of those exercising the power.

That remains the question.