Al Aulaqi -- Confounding Legal Compliance with Judicial Review

Kevin Heller says that progressives “argue that the decision to kill an American who does not pose an imminent threat should be submitted to law — to the judicial process — not left to the ‘good faith’ of the President.  Differently put: progressives are not asking for Presidents to be barred by law; conservatives are asking that they be exempted from it.”  Heller here commits the fallacy of identifying submission to law with submission to courts.  But of course these are not the same things.  The absence of judicial review of the president’s targeting decisions does not mean that those decisions are lawless.  The Executive branch is bound by law and many lawyers in the national security agencies spend their days and nights ensuring that it complies with the law.  For covert operations, there is an elaborate reporting process to Congress as well.  I have no doubt whatsoever that the program under review in Al-Aulaqi was thoroughly vetted by scores of lawyers across many agencies, with precise limitations and guidance attached.  There is, moreover, a very good argument that our fundamental law, the U.S. Constitution, commits wartime targeting decisions to the President alone, subject to his self-compliance with law.  Keller says that "progressives don’t trust the President to make such determinations in good faith."  That is fine, but it is not right to claim that those who support the President's authority to make such decisions free from judicial review do not believe in legal constraints on the presidency.