The program's defenders, however, argue that the president must be able to take lethal action against targets "who pose a continuing and imminent threat" and who are too risky to capture, as the president explained last May. But if, as reported, the Justice Department has the time to build a case against a suspected terrorist for months, then the threat he presents is not imminent. And if the threat is not imminent, then the administration's arguments for killing, and against external judicial review, fall away.
The Obama administration has apparently "solved" this logical inconsistency by redefining imminence to mean its opposite. Under the concept of "continuing imminence," the White House says it can order the killing of an American it suspects may someday strike - even without evidence of an actual plot.
The killing program isn't only unlawful, it's unwise.
When Americans hear of a drone strike, many think of a terrorist threat neutralized. But human-rights investigators and reporters have documented numerous horrific casualties of people killed due to mistaken identity or being at the wrong place at the wrong time.
Deaths like these have made the killing program toxic throughout most of the world and have turned potential allies into enemies. The blowback is so severe that retired Army Gen. Stanley McChrystal, who commanded U.S. and coalition forces in Afghanistan, has repeatedly called for restraint. "[T]here is a perception of helpless people in an area being shot at like thunderbolts from the sky by an entity that is acting as though they have omniscience and omnipotence," McChrystal said recently.
Perception isn't the only problem. We would do well to remember the 67-year-old grandmother killed by a drone while picking vegetables in her garden in Pakistan. Or the 16-year-old American boy blown up while eating dinner outdoors in Yemen. Or the 10-year-old Yemeni child who died in a CIA strike - only a few weeks after the president announced that drone missiles would not be fired unless there was a "near certainty" that no civilians would be killed.
There are some powers people should never concede to their government. That's why the Founders included due process in our Bill of Rights. Extraordinary powers consolidated in one office inevitably will be abused. That's true no matter who's behind the desk.
By asserting the right to kill based on his authority alone, President Obama violates the constitutional principles he swore to uphold and undermines the security we all seek. He also paves the way for a President Christie, Clinton, or Cruz to decide who lives and who dies.
Hina Shamsi is director of the American Civil Liberties Union's National Security Project.