David Cole in the New York Review of Books:
The President of the United States can order the killing of US citizens, far from any battlefield, without charges, a trial, or any form of advance judicial approval. That’s what Attorney General Eric Holder told a group of students at Northwestern Law School yesterday, in a much anticipated speech. The Constitution requires the government to obtain a judicial warrant based on probable cause before it can search your backpack or attach a GPS tracking device to your car, but not, according to Holder, before it kills you.
Holder’s speech marks a victory of sorts for those who have condemned the secrecy surrounding the administration’s aggressive targeted killing program. At a minimum, we now have a better basis for a debate about the extent to which a democratically elected leader should be entitled to single-handedly order the execution of those he represents. So those inside the Obama administration—including State Department Legal Adviser Harold Koh—who reportedly fought a pitched battle for this disclosure, deserve credit for the increased transparency it has brought.
But on the merits, the executive authority Holder asserted is deeply disturbing in the days of lethal strikes by unmanned drones. Garry Wills argued in Bomb Power that the nature of the Presidency was fundamentally altered with the introduction of the nuclear bomb; but in some ways, drones may ultimately mark an even more tectonic change. The nuclear bomb is so devastating that it cannot realistically be deployed (and has not been used since we dropped them on Hiroshima and Nagasaki in World War II, killing more than 200,000 people). The drone, by contrast, can be deployed, and has been, with increasing frequency.