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Cameron: Should the U.S. president have the right to kill American citizens when conducting counterterrorism operations?

By: /
11 February, 2013
By: Maxwell Cameron
Professor, Centre for the Study of Democratic Institutions, University of British Columbia

Nobody should be deprived of their life or liberty without due process of law. This basic constitutional principle is threatened by the entire program of secret assassinations currently conducted by the U.S. administration in various places around the world (no definitive list of sites has been provided). The idea that we are in a permanent, everywhere “war” has been used to undermine the very foundation of constitutionalism and the rule of law. Without this foundation the distinction between terrorism and war is untenable.

In a constitutional democracy, unlike a dictatorship, every action by a government official should be regulated by a norm, and every decision should, in principle, be subject to legal review. For the executive branch to create a program of secret assassinations (whether aimed at foreign nationals or citizens) in which it alone disposes of human lives turns the president simultaneously into commander-in-chief, supreme legislator, and judge without appeal. Such despotic power not only corrupts an already atrophied republic, it blurs the distinction between the president and the “terrorists” he is fighting.

I do not question the need, from time to time, for emergency powers, but as the great political scientist Carl Friedrich argued over 50 years ago – at a time of much greater existential threat to democracy – any emergency powers should be temporary; used only to defend the constitutional order (not subvert it); be declared by constitutional means (hence actively involving the Congress, not shamefully stonewalling it); and, above all, it should not arrogate to the executive the power to decide alone, without judicial review, when exceptional powers are to be used. Counter-terrorism must be conducted by all three branches of government so that security is balanced with due process. That is how we fight threats to constitutional order without becoming terrorists.

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