Michael Mukasy, President George Bush the Younger’s last Attorney General, in a recent Wall Street Journal op-ed described President Barack Obama’s leaked (should I say “surreptitiously released?”) white paper memo concerning presidential authority to conduct drone warfare, including against American citizens overseas. Mukasey had this to say, in part, about the memo:
The memo mentions the president’s constitutional responsibility under Article II to defend the country, but it grounds the president’s authority to act not in the Constitution but in “the inherent right of the United States to national self-defense under international law…and the existence of an armed conflict with al-Qa’ida under international law.”
A moment’s reflection yields the insight that the US government’s powers are defined by the Constitution, not by international law, and that in any event international law is a highly elusive concept, there being no universally recognized source for it. Yet here the Obama administration seems to prefer abandoning the Constitution altogether rather than relying on an inherent presidential power….
Because the Constitution is more than 100 years old, hard to understand, and not binding on anything, anyway. And a law “professor” says we ought to just do away with it. Plainly, our president buys that line, too.