Last month, America saw in graphic detail how the destructive notion of Too Big to Jail means an executive branch that refuses to prosecute a single banker connected to the financial meltdown. Today, with the release of a secret Justice Department white paper about the president’s so-called “kill list,” we are learning about another radical jurisprudential notion being pioneered by the Obama administration. Call it Too Big to Curtail.
That’s the most accurate label to describe the machinery of the government’s ever-expanding drone war. As the white paper asserts, that war — which is likely creating more terrorists than it is neutralizing — cannot be curtailed by laws or the constitution. Therefore, the argument goes, the president no longer merely claims the power to detain and torture people without due process, nor does he merely claim the power to execute American citizens without indictment or trial. Those extra-constitutional powers, which only a few years ago were seen as utterly illegal, are quaint compared to the new assertion that the president can now do all of this without any concrete intelligence suggesting a citizen is linked to terrorist activity.