The President shouldn't have the legal authority to conduct any drone strikes without a declaration of war from Congress. We've been ignoring the Constitution for a very long time.
What part of the Constitution are we ignoring?
According to the Constitution, the President is the Commander in Chief of the armed forces. The Constitution does not say that war must be declared for the armed forces to operate. Thus, ordering a drone strike without Congress' input would seem well within the scope of the President's powers.
It does. Armed forces killing people is a state of war. If not, it's policing then it's under the judiciary authority, not the president.
When the constitution was drafted, time delays necessitated that the military and the President act autonomously for the most part. Congress couldn't convene rapidly enough to expect them to have much say in all but the largest and most drawn out conflicts.
The War Powers Act is codifying this implicit power. The framers never considered a situation where the President and Congress is watching a conflict play out across the world in real-time and making decisions. So it's literally impossible to say how they wanted this to be handled. That's why they gave Congress the powers to write laws.
On a similar note the communication time has vastly narrowed but so has the ability to perform attacks.
If the president actually has the authority to send troops into combat without a declaration of war, then Congress can’t take it away from him, just like Congress can’t make it illegal to veto bills.
The War Powers Act doesn’t really set any punishment for the president if he ignores it. It effectively says that if the president does certain things (consult with Congress, follow certain timelines, issue reports) then Congress won’t complain. Presidents have generally followed those procedures without admitting that’s what they’re doing (they issue reports “consistent with” the Act, but never admit the report was required by the Act). But if a president completely ignores those requirements, Congress has to figure out what to do about it; which is exactly what would happen if the Act didn’t exist.
> It does.
Since the Constitution is a publicly available document, would you please point me to the spot where it says that? Thanks.
Theoretically, they can withhold funding from the military. But seeing as the Treasury Department falls under the President, it's unlikely they can actually do that.
Real life is rarely this black and white.
Did you commit a crime, yes/no? Let's bring it to trial.
The circumstances are messy in all real world instances, but the outcome is binary.
Refusing to even put a president on trial is more black and white, because it's a clear "no, not illegal" without even discussion.
Wait, what? Executive branch pretty explicitly encompasses enforcement. The Justice Department is part of the Executive branch.
Unless by "Judiciary authority" you meant the Justice Department, and not the Judiciary branch of the federal government, and by "not the president" you were very specifically discussing the semi-independence the Justice department has from the president.
If they were, the whole cop-killers, BLM, excessive use of force issue would not be an issue. The law would just say "Okay, a cop killed someone, that's their job, get over it." You can argue that the criminal justice system is too light on cops, but the fact that the criminal justice system is even involved means that killing people is not part of a cop's official job duties.
Practically speaking, law enforcement does have broad authority to kill people. So long as that death falls under the training guidelines written by the department, then it's unlikely the officer in question will face any punishment.
Now, killing a person might be seen as a violation of their civil rights, entitling their estate to compensation for the death. But that's a punishment for the state, not the individuals involved.
Law enforcement individuals have extremely limited authority to kill people, exclusively(?) based on self-defense.
The law enforcement system has the right to authorize the killing of people but is subject to judicial review.
Ergo, if a law enforcement individual breaks guidelines and kills someone, they're charged.
If a law enforcement individual follows guidelines and kills someone, then the system is charged. (E.g. state/federal lawsuits, consent decrees, etc)
There hasn't been a single year of my life where US armed forces weren't killing someone somewhere in the world. The US military has been involved in armed conflicts around the globe in nearly every year since WWII but it hasn't declared many wars.
https://en.wikipedia.org/wiki/List_of_wars_involving_the_Uni...
https://en.wikipedia.org/wiki/Timeline_of_United_States_mili...
There are a number of amendments that could be pretty reasonable argued to give citizens the right not to get killed by drone strikes.
Drone striking (or otherwise killing) citizens without due process seems unconstitutional. Drone striking foreign targets does not have those constitutional protections.
It's also worth noting that what someone thinks is legal is not necessarily what someone thinks _should_ be legal; I imagine that almost everyone here has at least some laws that they disagree with, but that's separate from the question of whether the law exists or not.
Drone strikes on foreign targets are most analogous to the historical practice of issuing “letters of marque and reprisal,” which allowed private actors (privateers) to act on behalf of the state to take out pirates.
Issuing such letters is an enumerated power of Congress, not the Presidency. So if the President does so unilaterally, they are acting outside their Constitutional authority.
The risks of abuse to military power are real and significant, which is why the power was placed in the body closest to the people - so that such actions would be consistent with the public will.
https://constitution.congress.gov/browse/article-1/section-8...
Yes it does, by reserving for Congress the right to declare war. Obama's drone strikes were carried out under the 2001 AUMF against al-Qaeda and the Taliban.
At the same time, the president's agencies no longer have the authority to do whatever they want.
So I guess the president can order the military to drone strike the FCC if he wants at this rate. I don't see what influence the Constitution is still going to have at this point.
Since Thomas Jefferson sent Navy & Marines after the Barbary Pirates without consulting Congress.
I mean, if Obama went to prison for the drone strikes he ordered, his sacrifice would be less than many common soldiers have made.
I want Presidents willing to put their lives on the line and their actions under the law. Is that too much to ask?
It seems to me the consequence would be that we would have Presidents who act carefully to not break the law. Are there any other consequences?
I've heard it said that "democracies are where the people in power lose". We've all seen "democracies" where the party in power never loses; those aren't real democracies. Likewise, I would say nations that are truly governed by law are where those in power face legal prosecution.
(Also, what's so bad about prosecution? If a person is innocent, the legal system will find them to be innocent, right?... Right?)
There are good and competent people who say "I'm willing to be President and be subject to the law, I'm willing to do both". Why can't be pick a President from that group?
Yes it's too much to ask every president to significantly risk jail time for being president.
Numbers are hard when they go against our intuition, but every US President is taking a comparable risk to being a soldier according to these numbers.
Obama took the risk of being a President while Black Trump took the risk of being a President while Orange
Ref 1. https://en.wikipedia.org/wiki/Coalition_casualties_in_Afghan... 2. https://www.militarytimes.com/news/your-military/2016/07/06/...
https://apnews.com/article/yemen-houthis-red-sea-shipping-ce...
The ones that should judge if it's not constitutional just passed judgment stating that a ex-president is above the law. I think they can invalidate if a president explicitly needs declaration of war, given recent history I'd bet a lot they would find it totally constitutional.
> As the Supreme Court concluded, the United States is in an armed conflict with al-Qaeda, and Congress’s 2001 Authorization for the Use of Military Force—along with the president’s commander-in-chief authority under Article II of the Constitution—provides ample domestic legal authority to conduct military operations against al-Qaeda.
tl;dr: We haven't been ignoring the Constitution for a very long time.
What does that mean? I'm not familiar with detached subthreads.
I wonder what the reason was, though.
> The opposite holding, where they are liable for everything, would be untenable.
Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.
> Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
Further evidence is that Sotomayors makes the claim in no uncertain terms and that the majority makes zero effort to dispute it.
They are not immune for the non-official act of soliciting or accepting bribes in exchange for an official act, which is the charge of bribery.
So if the President took a bribe in order to make someone ambassador to Sweden, they could not be prosecuted for making that person the ambassador, but they could be prosecuted for taking the bribe.
This isn't a misreading of the ruling. Justice Barret dissented from that particular part of the majority opinion, bringing up the hypothetical of bribery.
Enter LOBBYIST and POTUS on CONGRESS floor
LOBBYIST: projecting voice I am now rendering payment in exchange my appointment as ambassador to Sweden. What say you?
POTUS: projecting voice Yes, I knowingly accept these improper funds and -
CONGRESS immediately gathers a quorum, impeaches, and removes POTUS mid-sentence
POTUS: - name you ambassador to Sweden.
This is a disaster for rule of law.
The question is, will everyone surrounding a president allow the president to commit mass cullings or nuke California. And the answer is clearly not, outside of delusional fantasy scenarios.
Trump wasn’t even allowed to build a wall, and you think his VP would have let him commit genocide?
No, apparently it’s much easier and safer to just pay off the president directly.
These aren't randos; they're federal prosecutors that are hired by the sitting President of the United States.
Let's say that even if there is a decision that Trump's acts aren't related to his official duties and he somehow gets punished for those charges (I wouldn't hold my breath). How does this not give Biden and future Presidents a way to seriously abuse their power with a hope that they're not held accountable for it? Before it was just a hypothetical. Now we've crossed the Rubicon and established that there are scenarios in which a President can have unlimited power.
Yes, the places where he is explicitly given unlimited power.....
The weihmaher republik was a pretty good democracy back in the day. It just gave the leader certain rights, and suddenly Hitler became the dictator, creating Nazi Germany.
Everyone needs a limit to their power, otherwise they'll be able to essentially flip the board and declare themselves emperor.
Please don't project what I said here onto trump, Biden or Obama. None of them are on that level. It's just possible that a future president is that morally bankrupt, especially if social issues continue to accrue/inequality keeps growing unchecked.
Not it didn’t give him those rights. The parliament (including moderate parties) explicitly granted him the power to so whatever he wanted after the nazis were already in power.
Technically the US is in this predicament because one of them wanted his vice president to not name a successor, after mentioning several times during his presidency that he wanted a third term.
Just because he's a bad wannabe dictator, it doesn't mean he's not a wannabe dictator. He even said so himself, "just for one day".
No it wasn't. It had armed gangs, both right and left-wing, fighting in the streets, completely failed monetary policy and sky-high level of corruption. The republic just started to kind of getting back to normal for a few years at the end of 1920s, and then was wrecked with Great Depression.
See: 2020 in the US.
> completely failed monetary policy
See printing off a lot of money to deal with an emergency because the US hasn't had a meaningful conversation about revenue since 1993 when George HW Bush went back on "read my lips"
> sky-high level of corruption
You have people on this court accepting vacations and gifts from people who are wishing to push a certain political viewpoint on the court. They just ruled this was okay, too, by neutering a federal anti-bribery statute. Money is considered protected political speech.
There are a lot of parallels between Weimar Germany and the current state of the USA. More than anyone should feel comfortable with.
> There are a lot of parallels between Weimar Germany and the current state of the USA
It might be dysfunctional but largely in very different ways (unless you view it extremely superficially).
And even moderate ones.
> completely failed monetary policy
IIRC during the period between 1923 and the Great Depression (i.e. majority of its existence) it was relatively stable.
> Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans?
If you're not referring to this, Obama's already done this without getting charged.
Being POTUS is an unenviable job.
https://en.wikipedia.org/wiki/Anwar_al-Awlaki
Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.
And as a liberal I think “hell YES he should be prosecuted!” The government shouldn’t just go around killing citizens without due process. I don’t care what letter is by their name.
Imagine the civil war if the union couldn't kill confederates.
A full scale civil war really is an extraordinary case and is a lot more akin to a regular war than what we are talking about here.
I'm more afraid of someone declaring war on an abstract concept (like the "war on terror") and then using broad powers meant to be used in normal wars between states that have declared combatants than I am of a civil war.
But otherwise, the only remedy should be judicial process against these people: arrests, trial, etc. Otherwise we have a term for it: extrajudicial killing.
Of course, Congress has given the executive branch weird war powers over the past few decades, so legally I'm sure they're in the clear, unfortunately.
No, no: we do get that. We just think that’s a good thing. If you have the evidence (you don’t, or we’d have seen, like, any of it at all) then by all means, prosecute the absolute shit out of them!
Based on that, I would assume the targeter did not know whom they were targeting. Or they did, knew the orders came from the National Command Authority[1] (Eg. POTUS) and did it anyway. I would have.
1. https://en.wikipedia.org/wiki/National_Command_Authority_(Un...
But... It seems he was a member of al-Qaeda, and the "Public Law 107–40 107th Congress Joint Resolution" passed by congress did authorize:
> That the President is authorized to use all necessary and appropriate force > against those nations, organizations, or persons he determines planned, > authorized, committed, or aided the terrorist attacks that occurred on > September 11, 2001, or harbored such organizations or persons, in order to > prevent any future acts of international terrorism against the United States > by such nations, organizations or persons.
That does seem to authorize extra-judical killing in this case. I am not really happy about any of this, but since we are talking legalities, this seems to apply.
https://www.congress.gov/107/plaws/publ40/PLAW-107publ40.pdf
Only where their actions were already criminal under the law. This is the problem. No-one should be above the law.
I feel like you'd have a different opinion if it were you getting unintentionally killed!
I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.
Roberts disagrees in the decision (p. 17):
> Distinguishing the President’s official actions from his unofficial ones can be difficult. When the President acts pursuant to “constitutional and statutory authority,” he takes official action to perform the functions of his office. Fitzgerald, 457 U. S., at 757. Determining whether an ac- tion is covered by immunity thus begins with assessing the President’s authority to take that action.
> But the breadth of the President’s “discretionary respon- sibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or pal- pably beyond [his] authority.” Blassingame v. Trump, 87F. 4th 1, 13 (CADC 2023) (internal quotation marks omit- ted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have “refused to draw functional lines finer than history and reason would support”).
> In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of of- ficial conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II in- terests that immunity seeks to protect. Indeed, “[i]t would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government” if “[i]n exercising the functions of his office,” the President was “under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry.” […]
> Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law. For in- stance, when Fitzgerald contended that his dismissal vio- lated various congressional statutes and thus rendered his discharge “outside the outer perimeter of [Nixon’s] duties,” we rejected that contention. 457 U. S., at 756. Otherwise, Presidents would be subject to trial on “every allegation that an action was unlawful,” depriving immunity of its intended effect. Ibid.
* https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
A good example is that killer cop in Minneapolis, I don't remember his name or care to fill my brain with it. He was acting officially when George Floyd died under his care; he was responding to a 911 call that Floyd was the subject of.
The cop was convicted of murder, but let's say that POTUS does something abhorrent (and this is likely to occur now that this is case law) under color of law and someone wanted to charge him or her because of it. Does that get somehow pulled back as it did for the cop?
Ultimately I think the issue with this is we're trying to address a deep systematic issue through the system it's infected. Often those issues can't be solved that way and have to go around the system itself somehow. You're unlikely to be able to sue your way out of a fascist coup when it's successful for example, and similarly disadvantaged when the avenue is carrying water for a failed coup.
The thing about Biden, since you brought him up, is he's unlikely to test this in any meaningful way with regards to Trump. Could he theoretically now have the USSS detail in charge of babysitting Trump indefinitely detain him, without consequence? Maybe. But he still has at least some belief in the process and won't do that.
This gives me flashbacks to lessons about von Hindenburg. An old guard who had belief in the process going by it even when dealing with someone who has obvious and sneering contempt for that process.
To be fair the situation in Germany was multipolar. Hindenburg wasn’t a huge fan of democracy or especially of one run by Catholics, liberals and socialists and just saw the nazis as a lesser evil..
I mean under what idea is that part of his official duties? If it's not it's literally exactly the same as before. Biden can do this at literally any moment. This court case doesn't change his ability to make unlawful moves.
After today, if a federal judge arbitrarily decides "it's not", well... it's not.
I suppose if they really wanted to give a reason they could say he's a flight risk or something, it doesn't need to be valid with today's ruling.
To borrow from a similar claim: with the combination of the "Due Process" interpretation that backed the al-Awlaki killing (where Holder explained that due process was simply a term designating whatever process that they do, and could entirely occur in one's own head), and this judgement, Trump could have stood in the middle of 5th Avenue and shot somebody and could not be charged for it. So can Biden.
-----
edit:
Ten Years after the al-Awlaki Killing: A Reckoning for the United States’ Drones Wars Awaits
https://mwi.westpoint.edu/ten-years-after-the-al-awlaki-kill...
> From the Magna Carta to the US Constitution, citizens have sought ways to protect themselves from the arbitrary exercise of sovereign power. The drone strike on al-Awlaki reversed this historical process with an executive process. From the so-called “Terror Tuesday” or “targeting Tuesday” meetings where President Obama personally approved targets for drone strikes to the drafting of the legal logic justifying the extrajudicial killing of an American citizen, the strike on al-Awlaki was the result of decision making within the executive branch. Completely absent from the proceedings was the judiciary, which acts as a crucial buffer and neutral arbiter between the citizen and the executive.
> In its own defense, the Obama administration argued that due process was not the same thing as judicial process and presented the test that it used to justify the targeted killing. While some observers have emphasized the narrowness of the legal standard, it was crafted specifically to target al-Awlaki, therefore reinforcing just how discretionary this exercise of executive power was. Furthermore, it was conceived of and adjudged constitutionally sufficient by attorneys who had previously opposed executive overreach during the Bush administration.
[It's interesting that the al-Awlaki killing was over speech, too. So while the executive branch is not allowed to exercise prior restraint over speech, Presidents are now constitutionally immunized for murdering people to keep them from speaking.]
Am I wrong there?
The procedure for impeaching federal judges is similar, in that the vote needs first to pass the house, then a supermajority of the senate. In 2009, federal judge Thomas Porteous Jr, was successfully impeached by congress. Congress then also voted to prohibit him from holding future federal office.
Regardless, impeachment is there to remove the president from power. It can't jail or otherwise punish the president. The regular old legal system should be doing that, for everyone, regardless of whether or not they're an elected official.
https://en.wikipedia.org/wiki/Anwar_al-Awlaki
https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla...
To my mind, that is exactly the sort of thing I'd like to be hamstrung by a fear of prosecution.
(Trump ordered drone a drone strike that also killed Abdulrahman's eight-year-old American sister.)
Unintentionally? American citizens were the intended targets of some of his drone strikes. They weren't in warzones either, it was effectively murder.
Remember that the President can still be impeached for "high crimes and misdemeanors".
I'm trying to point out that it is not at all easy to draw a line between what a President could be prosecuted for and what he should be prosecuted for.
I'm pretty sure one could find abuse of power committed by about every President.
Even Jefferson - he wasn't empowered to make the Louisiana Purchase, but did it anyway.
For a president to be able to conduct "official acts" in self interest, with no obvious limits, is quite concerning.
I think the president should enjoy a weak presumption that official acts are legitimate. But this goes way too far-- prohibiting consideration of motives, prohibiting using them as context or evidence in any other proceeding, and appearing to classify what would be horrible abuses as official acts.
Should Biden be prosecuted for that?
I don't know if that would be prosecutable. Is there a federal law against acting as though you have powers you do not while in office?
I suppose the difference is that having SEAL Team Six kill a political opponent on the President's orders seems like it should be classified as first-degree murder.
We neither want a world where every politician faces investigation for misdeeds after leaving office, nor one where apparently the president can act with impunity with no clear limits at all.
We need a middle path, where prosecution is rare and exceptional but true misdeeds can be punished (and deterred).
I feel like we left behind where we were slightly over-investigating and made a massive overcorrection to the other side for blatantly political reasons.
How about the one which intentionally killed an American child (16)?
Part of me wouldn't mind seeing that, but, I would have to agree that was an official act, regardless of how despicable it was.
Fortunately, the past rulings of this court have made the jurisprudence abundantly clear:
If Biden orders Trump to be assassinated, that's unofficial, and he can be prosecuted.
If Trump orders Biden to be assassinated, that's official, and he has complete immunity.
Easy, right?
Either let people vent or nuke the whole thread
except Obama ordered plenty of drone strikes including on American citizens, so actual data suggests he was not "hamstrung" at all.
Judging from history, it is a pretty dangerous role as well and that doesn’t seem to have dissuaded many people. If there are willing to risk their safety, I’d think the risk of prosecution wouldn’t rank too highly either.
How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.
Source: I'm from places that had the Supreme Court (of places, not US) overturn an election result due to fraud
But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous.
Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him.
The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.
The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.
The opposite holding, where they are liable for everything, would be untenable. Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans? It seems like that world would hamstring the president far too much.
I don’t know if they struck the right balance here (and we not know until the next time it comes up), but at least we have slightly more clarity.