Ask ChatGPT: Can the president use the military against American citizens on American soil?

Yes, the U.S. president can use the military against American citizens on American soil in certain circumstances, but only under specific legal frameworks and constraints. The power to deploy the military domestically is not unlimited and is governed by a combination of laws, regulations, and constitutional protections. Here's a detailed explanation of when and how this could happen:


1. Posse Comitatus Act (1878)

The Posse Comitatus Act prohibits the use of the U.S. military for domestic law enforcement purposes in normal situations. It was enacted to prevent the federal military from being used as a tool of domestic policing.Key point: This law restricts the military from performing tasks typically handled by civilian law enforcement agencies, such as making arrests, conducting searches, or seizing property.

However, exceptions exist that allow military force to be used in exceptional situations.


2. The Insurrection Act (1807)

The Insurrection Act is the primary legal authority that allows the president to deploy the military within the United States to suppress insurrection, rebellion, or domestic violence.

Under the Insurrection Act, the president can send federal troops to states or localities to restore order, even without the consent of state governments, in cases such as:Civil unrest: For example, large-scale riots, rebellion, or violent protests that state or local governments are unable or unwilling to control.
Insurrection or rebellion: If there is a broad, organized effort to overthrow the government or disrupt the normal functioning of the U.S. political system.

The Insurrection Act has been invoked in history during times of extreme unrest, including:

- The Civil War (to suppress the Confederacy).

- The 1992 Los Angeles riots, when President George H.W. Bush sent federal troops to assist in quelling violence.

- The 1960s Civil Rights Movement, when federal troops were sent to enforce desegregation.


3. Martial Law

The president also has the theoretical ability to declare martial law, though this is extremely rare and controversial.

- Martial law essentially suspends regular civil governance and gives the military direct control over certain areas. It might happen in situations of national emergency, natural disaster, or widespread civil disorder, where the normal legal structures cannot function effectively.

However, the declaration of martial law would suspend civil liberties such as habeas corpus, free speech, and due process rights, and it is generally seen as a last resort.


4. National Guard and State Authority

The president has the authority to activate the National Guard for domestic purposes, including quelling civil disturbances. This can be done under both state authority (by the state governor) and federal authority (when the president federalizes the National Guard).Under state authority, governors can use the National Guard to deal with local emergencies without federal intervention.
If the president federalizes the National Guard, it places these forces under federal control, allowing them to be used for larger-scale national purposes, including handling unrest or emergencies that involve American citizens on American soil.


5. War Powers Resolution and Oversight

Even when the military is deployed domestically, the War Powers Resolution (1973) requires the president to notify Congress within 48 hours of military action and limits military operations to 60 days without congressional authorization. This serves as a check on the executive power to prevent overreach.


6. Legal and Constitutional Safeguards

Despite the president's power to deploy military force on American soil, this authority is not without limits:

- Due Process: Any actions taken by the military must still respect constitutional rights. The Fourth Amendment (protection against unreasonable searches and seizures) and Fifth and Fourteenth Amendments (due process and equal protection) would still apply.

- Public Oversight and Accountability: Use of the military against citizens would likely provoke significant public scrutiny, legal challenges, and political consequences. In the past, military intervention in domestic issues (such as during the Civil Rights Movement) has been subject to judicial review and public debate.


Summary

The president can use the military against American citizens on American soil, but only under specific circumstances and legal frameworks, such as the Insurrection Act or in cases of martial law. These actions are constrained by laws like the Posse Comitatus Act, and any deployment must be in line with constitutional rights and subject to Congressional oversight. In practice, the use of military force domestically is reserved for extreme situations, such as widespread violence, rebellion, or national emergencies, and would be heavily scrutinized.

From Lawfare: The Age of Open Assassination

Whether constitutional or not, the author argues that they are not a good idea.

- Click here for the article.

The terms “assassination” and “targeted killing” were once legally distinguishable. Until 2001, most people accepted a distinction between illegal assassinations of political figures during peacetime and lawful targeting of those who were an imminent threat in an armed conflict. Since 9/11, under the framework of global counterterrorism, these differences have become a matter of semantics. Any killing the president orders is now apparently lawful, at least under U.S. domestic law. However much we parse the finer legal points of the legitimacy of self-defense under Article II, or the Quds Force’s April 2019 designation as a Foreign Terrorist Organization, or the relevance or irrelevance of Executive Order 12333 banning assassinations, or even the unchecked growth of U.S. executive power, we are looking at the world through a straw. Whether or not it was technically a legal act, Soleimani’s killing will have a historic global influence.

To understand why this is so, we must start with the history of assassination. Assassination is one of the oldest tools of statecraft, a favorite tactic of weak states seeking leverage against strong powers. In “The Art of War” (5th century BCE), Ancient Chinese strategist Sun Zi wrote of assassination as a way to avoid costly warfare, using spies to gain “the identities of the defending commander, his retainers, counselors, gate officers, and sentries” so as to eliminate them. Indian statesman Kautilya also explained the benefits of assassinating enemy leaders to gain an advantage in “Arthashastra” (1st century BCE), his comprehensive guide to governance. The Iranians invented the term “assassins” in the 12th century. Rulers were commonly assassinated in 15th-century Italy: Niccolo Machiavelli spent much of The Prince discussing how to avoid it.

Banning assassination was not just the right thing to do; it was how modern nation-states consolidated their power. What the United States has done with the hit on Soleimani is undermine a pillar of support for stronger, status quo powers. With the development of international law in the 18th century, most states ruled out assassination precisely because it advantaged weaker states and nonstate actors. The Lieber Code, written during the American Civil War, expressly prohibited it. The Hague Conventions of 1899 and 1907 also banned assassination, and the Geneva Conventions forbade killing anyone not directly involved in hostilities. Assassination as statecraft declined during this period for normative reasons but also because major powers feared retaliation and got better at physically protecting their territory. In the century that followed (and influenced by the devastating global consequences of the 1914 killing of Archduke Franz Ferdinand), the ban on assassinations was a practical way to prevent state leaders and senior officials from being killed and upending the international system. When major powers put certain people, such as political leaders and senior officials, off-limits for targeting by governments not engaged in a formal state of war, the act was a practical move that served their interests.

From Business Insider: The 7 most important military decisions the next president will make in 2017

For our look at the powers of the Commander in Chief. The next one anyway.

- Click here for the article.

1. Will the US pressure China to get off of contested islands, force them off with war, or let China have its way?

2. How dedicated is the US to the NATO alliance and deterring Russian aggression?

3. What part of the world is the real priority?

4. What is America’s role in the ongoing fight against ISIS and is there a need for more ground troops?

5. How long will the Air Force keep the A-10?

6. How much is readiness worth and where does the money come from?

7. How many generals and admirals should the US have?

John Yoo says the president has the authority to strike Syria without congressional approval

Yoo was a controversial member of the W Bush Administration. He served in the Office of Legal Counsel in the Justice Department and developed arguments that promoted an expansive view of presidential powers - especially as it regards war and defense.

He sees no reason for President Obama to go to Congress to authorize action against Syria, and argues that history gives plenty of examples of the military being used without such approval. He uses fundamental text from the ratification era to argue that the framers of the Constitution saw a limited role for the legislature in conducting the military: 

Throughout our history, neither presidents nor Congresses have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad.

We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American Wars, and World Wars I and II.

Without any congressional approval, presidents have sent forces to battle Indians, Barbary pirates and Russian revolutionaries, to fight North Korean and Chinese communists in Korea, to engineer regime changes in South and Central America, and to prevent human rights disasters in the Balkans.

A major point he makes is that war is different and the checks and balances that work during periods of peace do not work during periods of war when such checks may limit the ability of the commander in chief to effectively command the military. He also states that while the revolutionary war may have been fought against a monarch, the Constitution was written in order to create an executive branch specifically designed to act forcefully in times of war:

It is true that the revolutionaries rejected the royal prerogative, created weak state governors, and turned a skeptical eye toward federal power.  Rejecting these failed experiments, however, the Framers restored an independent, unified chief executive with its own powers in national security and foreign affairs.   

The most important of the president’s powers are commander-in-chief and chief executive.

As Alexander Hamilton wrote in Federalist 74, “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.”

Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy, and dispatch.”  In perhaps his most famous words, Hamilton wrote: “Energy in the executive is a leading character in the definition of good government. . . It is essential to the protection of the community against foreign attacks.”

The Framers realized the obvious. Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by pre-existing legislation.

Instead, they can demand swift, decisive action, sometimes under pressured or even emergency circumstances, that are best carried out by a branch of government that does not suffer from multiple vetoes or is delayed by disagreements.
 Congress is too large and unwieldy to take the swift and decisive action required in wartime.  

It's worth a full read. We'll try to make sense of these and counter arguments in class.

The War Powers Resolution

2305 students ought to get familiar with this significant piece of Vietnam War era legislation. It's applicability to the current situation in Syria will be debated heavily in the upcoming week - last week as well.

It was an early attempt to reign in executive war making powers, though its actual impact is subject to debate. It has never been tested constitutionally, so there's a question about whether it allows Congress to interfere with powers related to the "commander in chief."

From Jack Goldsmith: Why Doesn’t President Obama Seek Congressional Approval for Syria?

Goldsmith headed the Office of Legal Counsel in the W Bush Administration. He questions whether an intervention in Syria is justified, and whether the president has the power to act on his own. This will be useful for our future look in 2305 about the extent of presidential war powers.

I have a pretty broad view of presidential power to use military force abroad without congressional authorization.  On that view, which is close to the past views of the Office of Legal Counsel, the planned use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.  There are many reasons why it is a stretch even under OLC precedents.  The main ones, as I alluded to a few days ago, are (1) neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists; (2) the main non-self-defense U.S. interest that the Commander in Chief has invoked since the Korean War to justify unilateral uses of force – upholding the integrity of the U.N. Charter – appears (as Wells argued) to be disserved rather than served by a military strike in Syria; and (3) a Syria strike would push the legal envelope further even than Kosovo, the outer bound to date of presidential unilateralism, which at least implicated our most important security treaty organization commitments (NATO).  (Note that the USG was, as Wells pointed out, never able to publicly articulate a legal rationale for Kosovo.  In our more legalistic age 14 years later, such silence likely won’t be possible, but it also won’t be possible to rely on Kosovo as a constitutional precedent without explaining why the invasion was lawful at the time.)

Members of Congress insists Obama seek congressional approval in order to strike Syria

From The Hill:

More than 100 lawmakers, including 16 Democrats, have signed a letter that says President Obama would violate the Constitution by striking Syria without first getting authorization from Congress.

A total of 107 lawmakers had signed the letter as of 3 p.m. Wednesday, highlighting bipartisan interest and growing momentum in ensuring a role for Congress in any decision to use force in Syria.

“Engaging our military in Syria when no direct threat to the United States exists and without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution,” states the letter, spearheaded by Rep. Scott Rigell (R-Va.).

The Speaker of the House wants a case to be made for intervention:

In a letter to the president, Boehner said the briefings key lawmakers have received so far have failed to assuage their concerns about the administration's strategy.

“I respectfully request that you, as our country’s commander-in-chief, personally make the case to the American people and Congress for how potential military action will secure American national security interests, preserve America’s credibility, deter the future use of chemical weapons, and, critically, be a part of our broader policy and strategy," Boehner wrote.

He stopped short, however, of demanding a congressional vote, even as more than 107 House members have signed a letter to the president making the case for such an authorization.

Boehner hinted that he supports retaliation following allegations Bashar Assad's forces used chemical weapons, saying the president's response had implications for America's “credibility” beyond Syria, notably in Iran. But he asked no fewer than 14 pointed questions about the long-term goals of a military response, notably regarding the risks of empowering Islamist militants and drawing Assad allies Iran and Russia into the fight.

Some House members argues that an attack would violate the War Powers Resolution:

House members demanding congressional approval for a military attack against Syria are making detailed legal arguments that ignoring Congress would violate the War Powers Resolution (WPR).

Dozens of House members are now on record as insisting that Congress must authorize military action against Syria, including more than 100 who plan to deliver a letter to the White House on Thursday.

That letter argues that the Obama administration is stretching its authority under the WPR, which was passed in 1973 and defines the circumstances under which the executive branch can commit military assets overseas.

Under the WPR, the president can "introduce United States Armed Forces into hostilities" pursuant to a declaration of war, specific statutory authorization, or under a national emergency "created by attack upon the United States, its territories, or its armed forces."

In the letter to be sent Thursday, members argue that Obama has already weakened that standard in regard to Libya. It notes that in 2011, the administration's Office of Legal Counsel said Obama can rely on his constitutional power to safeguard the "national interest" by conducting limited military operations in Libya.

President Obama annouced rules related to targetted killings and drones

A guick description by the NYT:

In a widely anticipated speech at the National Defense University, Mr. Obama offered his most expansive defense of the drone war he has waged since taking office, but he signaled that he planned to wind down the strikes, which have stirred controversy at home and abroad. He referred obliquely to a new secret order imposing a higher standard on authorizing such attacks and shifting responsibility more from the C.I.A. to the military.

Beyond that, Mr. Obama proposed the creation of a secret court or some other independent body that would have to sign off on strikes in the future. He also called on Congress to revise the authorization of force it passed in the aftermath of Sept. 11 to reflect the changing nature of the war on terrorism. And he renewed his moribund effort to close the prison at Guantánamo Bay, Cuba, by saying that he would lift a moratorium on transferring scores of detainees to Yemen.

Taken together, the president’s words and deeds added up to an effort to move the country away from the perpetual war on terrorism envisioned by his predecessor, George W. Bush, toward a more limited campaign against particular groups that would eventually be curtailed even if the threat of terrorism could never be eliminated.

Andrew Sullivan has a compilation of reactions to the speech here.

And Foreign Policy offers a clift notes guide to four key points made in the speech.

1 - A location in the US will be found to try Guantanamo detainees.
2 - A process will begin to determine how to oversee drone strikes , like involving the creation of a special court.
3 - Drones strikes will be carried out by the military, not the CIA.
4 - The War on Terror will end, someday.

From the NYT: Who Will Mind the Drones?

A terrific op-ed from the NYT.

We've been discussing expanded executive power, and especially the increased power of the president in his role as commander-in-chief. Part of this concerned claims that the president has broad authority over launching cyber attacks, and some concerned the president's ability to direct droe attacks. These are generally done without external checks. presidents tend to claim that doing so - in any situation - violates their commander-in-chief powers, but since some of these have been launched against American citizens who seem to have sided against the US.

This raises questions about due process.

A former solicitor general for the Bush Administration looks critically at the idea that a drone court in the judiciary should be set up to provide that check on the executive. He does not think this is a good idea:

There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.

He argues that a national security court - contained within the executive branch - is preferable:

Imagine instead that the president had an internal court, staffed by expert lawyers to represent both sides. Those lawyers, like the Judge Advocate General’s Corps in the military, would switch sides every few years, to develop both expertise as repeat players and the ability to understand the other point of view.

The adjudicator would be a panel of the president’s most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review. Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.

Such a court would embed accountability and expertise into the drone program. With a federal drone court, it would simply be too easy for a president or other executive-branch official to point his finger at a federal judge for the failure to act. With an internal court, it would be impossible to avoid blame.

Of course this does not provide a check in the way that the authors of the Constitution envisioned it, but it does reiterate the idea that the president has special powers - and a good deal of discretion - when it comes to military affairs.

The president has the power to order pre-emptive strikes against possible digital attacks

The NYT reports on legal rules being developed dealing with cyber security:

A secret legal review on the use of America’s growing arsenal of cyberweapons has concluded that President Obama has the broad power to order a pre-emptive strike if the United States detects credible evidence of a major digital attack looming from abroad, according to officials involved in the review.

That decision is among several reached in recent months as the administration moves, in the next few weeks, to approve the nation’s first rules for how the military can defend, or retaliate, against a major cyberattack. New policies will also govern how the intelligence agencies can carry out searches of faraway computer networks for signs of potential attacks on the United States and, if the president approves, attack adversaries by injecting them with destructive code — even if there is no declared war.

. . . Cyberweaponry is the newest and perhaps most complex arms race under way. The Pentagon has created a new Cyber Command, and computer network warfare is one of the few parts of the military budget that is expected to grow. Officials said that the new cyberpolicies had been guided by a decade of evolution in counterterrorism policy, particularly on the division of authority between the military and the intelligence agencies in deploying cyberweapons. Officials spoke on condition of anonymity because they were not authorized to talk on the record.

From NBC News: Justice Department memo reveals legal case for drone strikes on Americans

This is a topic we've discussed in previous classes. Al Qaeda is composed of some American citizens who intelligence agancies strongly believe are engaged in attacks against the US. Theyd like to just take them out - that's what drones are for - but since they are American citizens they are entitled to due process - that pesky Constitution. They have the right to challenge the accusation. Doing so is difficult to do since it involves arresting them - and they are not in the safest places.

So the Obama Adminstration has decided to invoke an expanded view of the powers of commander-in-chief and kill them anyway. This has raised the obvious constitutional questions, which there are other constitutionally based answers to. It's a complex issue. The question now is whether the administration has internal rules that ensure the use of this power is not arbitrary, and that it follows certain guidelines, and by the way what are those guidelines. A group of Senators is among those who would like to know more.

An NBC report details the issue and provides a link to a Justice Department memo that purports to outline the process used to select targets and move on them:

The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.” It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and not discussed publicly.

Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

Soon enough we will look at the expansionof the executive power in the US and the various part of the Constitution that have facilitated it. One is the commander-in-chief power. More to come.

3 - Summer 2 GOVT 2302 Written Assignment #3

A few posts below you'll see a link to a story to the "Lethal Presidency." I want you to detail what that might be, and how this ties into a principle topic regarding the power of the presidency over American history - it has increased substantively, especially in regard to foreign and military power. Often this has been a result of the increasingly sophisticated technology available to the president, unmanned drones and who knows what?

Here's the article that kicks this off:
- The Lethal Presidency of Barack Obama.

I want you to read it and some of the responses to it and comment on whether technology - and the reality of the war on terror - have marked a permanent change in the nature of presidential power. Is Obama acting any differently than President McCain would have acted?

Put this into context with the rise of military and presidential power following the end of WW2. is this just part of ongoing increase in the power of the presidency?

Presidents are getting very good at killing people

That seems to be the result of technological advancements and the pre-emptive mindset of the post 9/11 Bush presidency. But they are coming to a head in Obama's Administration.

This author calls it the Lethal Presidency.

The Wartime Bonus

In 2302 we discussed how crisis management - especially in a time of war - is good for a president's reputation. Historians tend to give high marks to presidents who held office during war, or led America into battle.

Here's a study that provides empirical proof of that allegation, and here's commentary:

American war casualties, as a fraction of the population, positively correlate with how historians rate U.S. presidents. More death = better presidents. . . . Greatness rankings by historians may prompt presidents to start more wars. The historians may have more blood on their hands than we care to admit.
And more commentary:

Henderson and Gouchenour investigated "the connection between presidents' greatness rankings and the intensity of the wars that those presidents carried on. Using multiple regression analysis, we compare the effect of war intensity with other explanations offered by previous researchers," such as intellectual prowess, GDP growth and involvement in major scandal. They found "a strong positive correlation between the number of Americans killed during a president's time in office and the president's rating."

Presidents have long recognized the "wartime bonus" doled out by historians. Henderson and Gouchenour quote Teddy Roosevelt: "if Lincoln had lived in times of peace, no one would know his name now." (TR would later come to envy Woodrow Wilson because Wilson got to fight the European war TR himself had pushed for.)
Along with the following wish:

Let's hope that the lure of "presidential greatness" doesn't tempt Barack Obama into rash action with Iran.

Some of the above commentators wonder if Congress makes it too easy to go to war. Rachel Maddow's recent book on this theme has stirred things up. 

Also worth a look: War Making and State Making as Organized Crime.

Can the President kill anyone he chooses, even if it denies an American citizen due process rights?

That seems to be what Attorney General Holder argued in a recent speech, a power he argues is a necessary consequence of the war on terror, and a component of the president's inherent power of commander in chief:

Some have called such operations “assassinations.”   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

 

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad.   Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted.   But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans.   Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.  

 

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances.   In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process.   Where national security operations are at stake, due process takes into account the realities of combat.

 

Here, the interests on both sides of the scale are extraordinarily weighty.   An individual’s interest in making sure that the government does not target him erroneously could not be more significant.   Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.

This subject straddles 2301 and 2302 since it concerns both the procedural rights that American's have - those that are spelled out in the 4th - 8th Amendments of the Bill of Rights - and the loosely defined military powers of the President. Here is an area where they conflict and the Obama Administration - along with most any other administration I imagine - would argue that his powers trump due process rights.

2302s ought to read the speech in order to hear what the attorney general is saying about the increased efficiency of the executive branch's military and surveillance powers after the considerable reorganization it went through following 9/11.

For detail and critiques read these:

- Holder Defends Executions Without Charges.
- So we should just trust that the president wont assassinate us?
- Reviving the Constitution.

- On targeted killings, Holder strikes out.
- Not so innocent abroad.

Obama Proposes Military Policy

President Obama announced his military policy yesterday. NYT coverage can be found here. A little snippet: 

Mr. Obama outlined a new national defense strategy driven by three realities: the winding down of a decade of war in Iraq and Afghanistan, a fiscal crisis demanding hundreds of billions of dollars in Pentagon budget cuts and a rising threat from China and Iran.
Slate argues that the cuts will pose "existential" problems for the army and the marines.

The report containing the recommendations can be found here

Leading From Behind

President Obama's approach to foreign policy has been described as "leading from behind." Here are a few stories which attempt to determine what this means:

- The Obama Doctrine: Leading From Behind.
- Leading From Behind.
- Behind the Curtain.
- Libya: A Victory for Leading From Behind?

Written assignment for 16 week 2302 students - Obama and the Two Presidencies Thesis

In last week's readings we briefly touched n the "two (or dual) presidencies thesis" which argues that "there are two versions of the American President: one who is concerned with domestic policy and one concerned with foreign policy." Presidents tend to have greater discretion in foreign policy than domestic policy because Congress has a greater role to play in domestic policy and can place limits on what presidents can do there than in foreign policy. The Constitution also seems to grant the president greater leeway in foreign affairs than domestic affairs.

Recent stories have hit on this issue regarding President Obama and his relative successes and failures in each domain. Some seem to confirm the idea that presidents have more success in foreign affairs than domestic affairs. Read through the following stories (feel free to look for more) and weigh in on this. How might this impact the election of 2012? Some of the stories below suggest that we might be seeing a change in the way voters look at each party. Republicans tend to have advantages on security matters and Democrats on well being issues - these might be changing.

- Governing with a Free Hand.
- The National Security Advantage.
- The Difference Between Foreign and Domestic Successes.
- Can Obama Win as a War President? - The Atlantic.
- Is Obama Still Weak?

Was the killing of Anwar al-Awlaki an unconstitutional violation of a citizen's due process rights?

By all accounts Anwar al-Awlaki was a bad guy - at least for those on our side - but was his (apparent) killing illegal? Is the United States now free to assassinate its own citizens if a presidential administration deems it acceptable? Critics argue that this action violated the Fifth Amendment's Due Process clause. Even more so, some wonder if an American citizen been killed for the content of his speech.

Former Bush legal adviser John Yoo thinks the killing was justified. Here's a summary of an editorial:

A U.S. drone strike Friday killed Anwar al-Awlaki, a Yemeni-American linked to the shootings at Fort Hood, Texas and the attempted bombing of a Northwest flight. It was a victory, writes John Yoo in The Wall Street Journal, yet "even as details of the operation leaked out, critics claimed that our government had 'assassinated' an American citizen without due process."

The ACLU has represented Awlaki's father, arguing "the Constitution forbids the government from trying to kill an American citizen for allegedly joining the enemy." The U.N. has suggested drone strikes deny due process. Last December, a court threw out the ACLU claim, saying "Awlaki always had the option of returning home to prove his innocence." American officials have defined an assassination as "an act of murder for political purposes," something which Awlaki's killing was not. "American citizens who join the enemy do not enjoy a roving legal force-field that immunizes them from military reprisal."

Abraham Lincoln knew early on that the government had the right to "treat its own citizens as enemies when they take up arms in rebellion. Supreme Court opinions have upheld Lincoln's principle." The shape of the war on terror, with a stateless enemy that recruits fighters from any country makes Lincoln's idea more important, and in 2001, the Supreme Court reaffirmed the idea that someone could be at once a citizen and an enemy combatant.

The Obama administration should be certain a citizen is a member of al Qaeda, and it should emphasize capturing not killing enemies, but as they face a drawdown, "the U.S. may be left with no opportunities for capture, and precious few chances to kill."

Fallows and Gore want Obama to be more Persuasive on Libya and Climate Change

James Fallows here.

Al Gore here.