“I don’t give a sh*t what you call it.”
So wrote Vice President J.D. Vance in response to journalist Brian Krassenstein, who questioned Vance’s assertion that assassinating suspected drug smugglers with missile strikes is “the highest and best use of our military.” Krassenstein called killing civilians without due process “a war crime.”
Public profanity and crude insults are the stock-in-trade of politicians left and right now. Political consultants, I’m sure, tell their bosses it makes them sound strong. Red meat for the base, one small symptom of our late-republic degeneracy.
To be fair, the words “due process” are triggering to the Trump Administration. Vance himself earlier defended abrogating due process to speed up deportations. President Trump answered, “I don’t know,” when asked if he agreed with Marco Rubio that presidents must respect constitutional guarantees of due process.
The Trump Administration is taking precedents set by Barack Obama to a new level. As President, Obama developed a “kill list” beginning in 2010 in consultation with CIA chief John Brennan. He ultimately ordered the assassination of thousands of suspected Islamists, including American citizens, with drone strikes. Disturbingly, many of these drone strikes killed innocent people, including Abdulrahman al-Awlaki, son of Anwar al-Awlaki, who had himself earlier been killed by drone strike. The strike on Abdulrahman was admitted to have been a mistake.
Obama and Brennan never disclosed who was targeted for assassination or why, and the courts dismissed challenges to the list on the grounds of standing. Only those targeted for elimination, the opinion in the al-Awlaki case held, had standing to challenge it. Needless to say, people targeted for assassination were not eager to travel to the US to challenge their assassination order in open court. The Obama Administration’s legal theory held that the targeted individuals were on an active battlefield — but they also defined the active battlefield to include virtually the entire Middle East.
The Trump Administration is now further relaxing limits on the presidential assassination power, justifying blowing up a boat of suspected drug smugglers on the grounds that the White House has declared drug cartels and gangs to be “foreign terrorist organizations.” Just as with al-Awlaki on Obama’s kill list, there is no recourse for anyone the White House considers to be affiliated with one of these “terrorist” groups and thus fair game for killing.
What makes the Trump Administration’s assertion of power more alarming is the fact that they also consider asylum seekers and illegal immigrants to constitute a literal “invasion” in the legal sense. It doesn’t take an expert logician to see that this administration’s position implies it would be lawful — and beyond judicial review — to employ federal agents to kill anyone suspected of entering the country illegally.
Obama could at least claim the authority to order the killings of foreign combatants under the congressionally enacted Authorization for Use of Military Force against al-Qaeda. The legal authority claimed by the Trump Administration for extrajudicially executing suspected drug traffickers is, believe it or not, the International Emergency Economic Powers Act, the same law it uses as authority for its sweeping tariff war against the world, despite the fact that it doesn’t mention tariffs or the power to kill.
In the second Trump term, we are getting a clear picture of an administration dedicated to punching holes in the rule of law. Since the Magna Carta, the Anglo-American legal tradition has held that the sovereign is subject to the law, a principle that amounts to words without substance if the law permits the sovereign to forfeit the lives, liberties, and properties of his subjects by simple command.
The framers of the American Constitution understood that the rule of law is not self-executing. The survival of the rule of law requires tight constraints on the executive branch. Congress and the judiciary must sanction the executive when he gets out of line. States must place roadblocks in the way of a federal government that tramples our rights.
I don’t so much blame Trump or Vance for trying to take power. Trump often behaves like a petulant child who doesn’t understand why he can’t always get what he wants. Vance has consistently chosen political power over principle, embracing positions that betray the very values he once claimed to defend. The genius of the Constitution is supposed to be that the ambition of each branch of government checks the power-grabs of evil men.
So I blame cowardice in Congress and the courts, if these assaults on the rule of law manage to go through. If vague legislation authorizes sweeping executive emergency powers, then we no longer live in a constitutional republic, but an elective dictatorship.
Obama set the precedents for presidential lawlessness; now Trump is exploiting them. It’s not difficult to see where this trajectory is heading.
