Reading a not very well-formed counterfactual this morning, regarding the Conflict Formerly Known as the War on Terror and in particular the justifiability of targeted killing to prevent the 9/11 events, I began to think about some commonplaces of our discussion on the executive in the American system. As for the particular “mind experiment” in question, it asks us to imagine too many impossible things – among others that there was already a weaponized drone capacity and system in place in Afghanistan in August 2001, and furthermore that attacks on Al Qaeda in Afghanistan would have necessarily had a direct effect on the events in the U.S. the following month. Trying to make better sense of these somewhat nonsensical premises would require a survey of realer alternative universes in a way that, by working of the usual convergence principle, would lead us back to our own best and only of all possible worlds. The underlying issue of executive power remains worth considering, however, both historically as well as counter-historically.
To address the question as it might have been posed, any president who receives actionable intelligence of an attack on U.S. citizens or allies that can practicably be interdicted will have and will be to seen to have the responsibility to order such interdiction, with military force if necessary. A president who declined to act in such an instance would be shirking responsibility, and might very well be putting his or her presidency in danger. In this sense the effective declaration of war in the Authorization for Use of Military Force Against Terrorists of 2001 merely concentrated the executive mind, removing certain second thoughts along with potential impediments to action. Indeed, it has been something of a deep and unquestioned presumption, in concept since Hiroshima and Nagasaki, that the American president has the ability, in theory, not just to act on a relatively low level against whatever particular threats, but to order the annihilation of very large numbers of people, even to precipitate acts of world-historical evil, without formal consultation of any kind. Any American president simply by giving such orders, even if they were disobeyed, could plunge the nation and the world into crisis, and it is also worth noting that for several decades up to the present day, the American president has not been the only leader with that ability, if to this point only the American and Russian or Soviet leaderships have had the power not just to kill millions and destroy nations, but, possibly, if Nuclear Winter and alternative ecological theories of the effects of mass nuclear detonations are sound, to eradicate human civilization and even the global environment as we know it.
To step back from the Armageddon-level options that still follow our chief executive around in a briefcase, there remains only a post hoc and in the highest sense political check on a president’s interpretation of Article 2 powers. In non-global-apocalyptic but merely national apocalyptically extreme cases, a president may even interpret his designated and implied responsibilities to allow for flagrantly unconstitutional and extra-legal measures: It should suffice for us to return, as frequently, to the actions of President Abraham Lincoln, specifically in nullifying the requirement for writ of habeas corpus, generally in prosecuting war against insurrectionists on the basis of his own judgment until eventually approved by a wartime Supreme Court. At such points, it is “up to history” to determine whether the executive has done the right thing – will be memorialized with a sacred monument or will instead receive a tearful farewell under threat of impeachment. History might arrive very early if the orders are received as criminal or insane by those tasked with implementing them: So the first test is whether the orders are sensible enough to be carried out at all. The answer in such an instance will in turn depend on the concrete character of the threat and the intelligence on it, relative to context. A president ordering a pre-emptive attack against hallucinations will be in a different situation than a president ordering a fighter pilot to shoot down an airliner being steered into a skyscraper on live TV.
If we return to history as we more or less know it, we can observe that presidents have been conducting covert “warfare” without or well beyond any literal or tacit declarations of war more or less continuously since at least the lead-up to American entry into World War II. Under a closer consideration we will be forced to conclude that presidents not only have been acting, but have always been expected to act on their own, and only afterward submit their conduct to external judgment. That is the meaning of executive power, and we are indulging in a fantasy of ideal liberal faith if we imagine that a fully elaborated legal regime will ever succeed in anticipating, or ought to be constructed to anticipate, all possible instances calling for executive discretion. Any such attempt will merely re-locate this executive necessity – the sovereign decision on the exceptional circumstance – elsewhere, perhaps in the legislature or the courts, or perhaps, after failure of such an idealized system, in the strengthened executive of a successor regime.
In short, we prefer things “this way,” not because we approve of every particular action by presidents acting beyond the law, but because the ability of the executive to do so is definitional for the entirety of a sovereign liberal democratic order. Because this design is definitional and systematic, there will turn out to be no true alternative that would not entail comprehensive alterations eventually affecting every aspect of national life. We can express this notion by a different counterfactual: If we remove executives acting beyond the law, then American history starts becoming unimaginable and unrecognizable beginning with the Thomas Jefferson Administration at the very latest. ((A partisan of the Native American and other anti-U.S.-imperial lost causes might be tempted to embrace this very broadest of counterfactuals, but would have to deal with the existence of several other European powers ready to facilitate, adjudicate, administrate, and where necessary co-execute the popular invasion of the New World by the Old. ))
To return to the present situation briefly, establishment of an elaborated administrative and legal framework for targeted killings, whether in general or exclusively in regard to American citizens, may be worth doing for a range of reasons. Perhaps the best reason for doing it will be not that it would work as intended, but that it would express and help realize an expectation of a more moderate approach to national self-defense and war powers. Yet no one can predict what some future president or congress, in the circumstances of some future emergency, could do with a court empowered to validate assassination plans. Nothing in any law can prevent us, through a president’s designs or perhaps through attempts to pre-empt them, from destroying ourselves politically, morally, and otherwise, if we so choose or if events choose so for us. At best, we can put up impediments, and tell ourselves, because saying so makes us feel better, and because feeling better has its uses, that we have done what we could.
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I’m afraid that you took the whole idea of a “mind experiment” WAY more literally than I was using it.
But on your larger point, I think you’re grappling with the same thing I suggested here. Its unlikely that we can create “rules” that will protect us from executive abuse.