Executive power in foreign policy

Executive power refers to the executive branch’s ability to make decisions without the permission or direction of the legislative branch (Congress) and the judicial branch (the Supreme Cour t). Although Congress and the Supreme Cour t can limit executive branch actions, often in matters of national security, the president, as the leader of the executive branch, will make an irreversible decision on his own. This might be the decision to assassinate an enemy combatant, or to hold a prisoner without a trial. Throughout the twentieth century, the use of executive power has expanded, and it has  also  become  increasingly  controversial,  par ticularly after policies put for th by the administration of President George  W.  Bush  allowed  the  military  to  tor ture  several accused terrorists in an effor t to extract information from them related to national security. The debate over executive power is a test of the system of checks and balances built into the U.S. Constitution, and it requires the candidates and the American voters to strike a balance between national security and individual liberty.

Since President Barack Obama took office in January 2009, the use of executive power has been particularly controversial in the continued operation of the Guantánamo Bay detention center and the use of unmanned drones for targeted killings.

 

The Guantánamo Bay detention camp is an interrogation facility located in Guantánamo Bay, Cuba, at a U.S. naval base. Because it is not on American soil, the U.S. government has used Guantánamo as a location for interrogating enemy suspects without giving them trials. At the height of the War on Terror, President Bush used Guantánamo as a place to interrogate suspected terrorists, causing much controversy, especially when the Supreme Court ruled in a series of cases that the detainees were entitled to the basic protections of the Constitution.

During his 2008 presidential campaign, then-senator Obama promised to close the detention center. Once in office, President  Obama issued executive orders authorizing  the closure of Guantánamo and the transfer of inmates detained there to U.S. prisons. Congress opposed the policies of these executive orders, and has repeatedly added clauses to defense bills prohibiting the transfer of detainees, effectively blocking the shuttering of the facility.

Governor Mitt Romney has voiced support for the continued use of the Guantánamo Bay detention center, stating that he believes it will prevent detainees from having access to increased procedural tools, such as lawyers. 

Another area where the assertion  of executive  powers is controversial is the use of targeted killings as a counter- terrorism strategy. The first known use of Unmanned Aerial Vehicles (drones) to kill suspected terrorists and insurgents was in 2004 during the Bush administration,  but the use of drones  has increased  steeply  under President  Obama. Since Mr. Obama took office, the United States has mounted over three hundred drone strikes in Pakistan, Somalia, Yemen, and, allegedly, the Philippines.  Drones have been used by the Obama administration in the targeted killings of fighters associated with Al Qaeda, the Taliban, and other militant Islamist groups. The administration also authorized strikes targeting Anwar al-Awlaki and Samir Khan, two American citizens. The use of drones has been controversial because of the legal justification for them presented by the Obama administration, the risk posed to civilians, and the constitutional questions raised by the targeted killing of American citizens, among other reasons.

President Obama has justified the use of drones to perform targeted killings using the original Authorization for Use of Military Force (AUMF) passed by Congress in 2001 after the 9/11 attacks. The administration claims that the AUMF’s authorization of “all necessary and appropriate force” against Al Qaeda and associated  forces provides  enough congressional support for the continued use of military force outside of the Afghan arena, where U.S. forces were fighting the terrorist group in the wake of September 11. In addition to the legal justification, there is evidence that the use of drones to kill targets is less dangerous to civilians than other means.

The president has claimed that the AUMF’s authorization to target worldwide terrorist operatives allows him to form and maintain a list of individuals, including possible American citizens,  who can be targeted  for these attacks.  Attorney General Eric Holder justified this targeting by noting that the constitutional guarantee of “due process” does not require a judicial procedure. Creating a broad framework, Mr. Holder claims that the executive may target an American citizen if, after balancing potential casualties against the government’s interests in national security, the person is determined to be a combatant (or a civilian participating in hostilities) of “definite military value,” if the anticipated collateral damage is not excessive, and if the targeted killing will not cause unnecessary suffering.

 

Governor Romney has not criticized the president’s framework for drone strikes or disputed any of the powers that he claims. Republican politicians like former Minnesota governor Tim Pawlenty have claimed that Mr. Romney would “go farther” than Obama on the use of drones, but Mr. Romney himself has not openly claimed that he would expand the size and scope of the drone campaign. He has criticized the president by claiming that Mr. Obama has not been aggressive enough,8 and it is not clear to what extent he would utilize the legal and material framework set up by President Obama to execute drone strikes to pursue other military goals.

Both candidates, and their parties,  seem intent on at least maintaining  the current situation with regard to the use of drones. The broad consensus between the parties on this issue means if Mr. Romney wins the 2012 election he will inherit a legal and military framework that interprets the original AUMF as a broad congressional mandate authorizing the president to conduct these strikes. Now that the Obama administration’s counterterrorism advisor John Brennan has publicly acknowledged the use of these drones, there may be room for more debate between the candidates about the merits of the attacks. But until that debate happens,  the candidates have something they can agree on.

-This article was written by Chad Gholizadeh and appears in full in The IDEA Guide to the 2012 U.S. Presidential Elections.