By Constitution Staff

Should the president of the United States, on his own, without any due process of law as required by the U.S. Constitution, be able to detain American citizens, or even order their death with a drone or some other method?

Senator Rand Paul, in his heroic 13-hour March filibuster, raised the awareness of the American public to these issues, especially to the issue of the constitutionality of President Obama's "Kill List." Before Paul's taking to the floor of the U.S. Senate, the Oklahoma Constitution newspaper had already begun working on a story to ascertain the position of members of Oklahoma's congressional delegation on two issues:

(1) Should the president of the United State be allowed to detain U.S. citizens or legal residents of the country, without any due process of law, simply because he believes they are in league with terrorists?

(2) Should the president of the United States be allowed to execute a "Kill List" of American citizens and legal residents, ordering their death by drones (or any other method) inside or outside of the United States?

According to a leaked "white paper" from the Obama Administration, there are three requirements to order a hit on an American citizen. First, an informed high-level US government official must determine the targeted individual poses an "imminent threat of violent attack against the United States." Secondly, capture is not likely, and thirdly, the operation would be conducted in a manner consistent the applicable rules of warfare. The white paper ignores the procedural protections expressly provided in the Constitution, specifically designed to prohibit any president from serving as prosecutor, judge, jury, and executioner.

As James Madison said, "The natural province of the executive magistrate is to execute the laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must presuppose the existence of laws to be executed."

One would think that on issues of this gravity, the members of the U.S. House of Representatives and the U.S. Senate from Oklahoma would not have to be asked their views, but would be freely offering their opposition, loudly, to such blatantly unconstitutional practices.

One would think.

However, for the most part, prying the answers out of the uniformly Republican Oklahoma congressional delegation was very difficult.

For the benefit of our readers, the Oklahoma Constitution makes the following responses available, for your review and judgment.

Congressman Frank Lucas (third district, which is most of western Oklahoma), responded to both questions. Concerning the detention of American citizens and legal residents under provisions of the National Defense Authorization Act (NDAA), with no due process, Lucas said, "Every American has a right to due process and their day in court if charged with a crime. Our country was founded on principles that protect these rights and other liberties against a tyrannical government. Simultaneously, our country was founded with the primary purpose of providing for the common defense of its citizenry. For these reasons, I supported language in the FY 13 Defense Reauthorization Act that fortified the protections of US citizens while restricting the rights of enemy combatants aiming to kill US citizens. I do not believe a terrorist deserves the same constitutional protections as an American citizen. The FY 13 reauthorizaiton ensures that every US citizen will be granted due process and will not be subject to indefinite detention."

On the question of the president's authority to order the killing of U.S. citizens and legal residents whom he has determined to be terrorists, with no due process, Lucas had this to say: "I support efforts to conduct necessary drone strikes targeting proven terrorists overseas. However, I am concerned with the Administration's apparent unwillingness to categorically reject the possibility that American citizens on US soil could be targeted and killed without due process. The Administration's decision to even consider this deeply worries me, however, this is only one of the many questionable decisions this Administration has made."

Congressman James Lankford (fifth district, which is most of central Oklahoma), was very responsive, speaking with the Oklahoma Constitution by phone, while he was waiting on a flight from the Dallas-Fort Worth Airport.

Lankford agreed that American citizens and legal residents of the United States should not be detained without due process, such as the guarantee of habeas corpus. He told the Oklahoma Constitution that he has combed through the NDAA, and had others look as well, and said he just cannot find anywhere in that legislation anything that would authorize the government to indefinitely detain U.S. citizens, or even a person here legally.

This concern is increased by the fact that so many Americans simply "do not trust this president," Lankford said, adding that such distrust has been "earned."

Lankford expressed greater concern over the process of the so-called Kill List. He said that the process of the president or a small group within the executive branch making a list of American citizens who could be assassinated, whether it was by a gun, a bomb, or a drone, has "opened a whole new day."

He saw a huge difference between shooting someone on a battlefield who has taken up arms against the United States, and just taking out an American citizen overseas simply on the judgment of someone in the executive branch that the person is a terrorist, or is aligned with terrorists. Lankford also expressed concern about the United States killing persons who just happened to be near the alleged terrorists.

Lankford said that there are many Democrats who are also concerned about the drone-killing program, and that efforts are being made, on a bipartisan basis, to provide "oversight" to this great power. In summary, Lankford is concerned about the president's "kill list," and considers himself as a part of a group of congressmen who want to protect the lives and liberties of the American people.

When we contacted Congressman Markwayne Mullin (second congressional district, which is most of eastern Oklahoma), we received this response through his spokesman, Tim Ross: "I checked with the Congressman and [he] doesn't have a comment at this time. Thank you very much for checking in though."

Congressman Jim Bridenstine (first congressional district, Tulsa area) responded through Sheryl Kaufman. Kaufman told the Oklahoma Constitution that the congressman won't say anything about the issues, unless this comes up in the House. She volunteered that the congressman was "supportive of Senator Paul," although Bridenstine did not agree with "everything" said by Senator Paul. When asked for an example of something Bridenstine did not agree with in Paul's filibuster, she declined to cite anything specific.

Kaufman added that Bridenstine serves the House Armed Services Committee and will "maintain keen oversight" over what happens.

Congressman Tom Cole (fourth congressional district, mostly southwestern and south-central Oklahoma) met with the Oklahoma Constitution in an exclusive interview to discuss this and other related issues. In both the situation with the detention of American citizens and legal residents and the infamous "Kill List," Cole contended, "The Constitution is supreme," and the president has no authority to detain or kill American citizens without due process of law.

Cole said that there is a difference between American citizens "shooting" at U.S. military personnel in a combat situation, and simply targeting citizens and legal residents because of their political views. Cole, a one-time college history instructor, said that there has always been a "tension between liberty and security," and recalled that both President Abraham Lincoln and President Franklin Roosevelt violated civil liberties during war-time. "But that did not make it right," Cole added.

In a specific reference to the use of drones to kill foreign terrorists on foreign soil, Cole said that it is possible that former Defense Secretary Donald Rumsfeld was correct in his assertion that we may be creating more terrorists than we are killing with our drone program. "I think it is a situation of out of sight, out of mind," Cole said of Americans' attitude toward the inevitable "collateral damage" of innocent civilian by-standers.

Cole also offered that he believed the Obama intervention in the Libyan civil war was "unconstitutional," because Congress had no vote of approval in that case. He said that "in general," he did not favor intervention in foreign countries to decide their political leaders. He also commented that the "Bush doctrine of pre-emption is not a good doctrine."

There needed to be a "balance" between isolationism and interventionism, he contended. He also opposes military aid and intervention in Syria.

Despite repeated efforts to get a response from Senator Tom Coburn, we were unable to gain a response as to what Coburn's views were of the Obama Kill List. The night that Senator Paul was delivering his impassioned speech in opposition to the Kill List in his filibuster, Senator Coburn was eating a private dinner with President Obama, along with other members of Congress, such as Senator John McCain.

Coburn did, however, respond to a constituent's query concerning the detention issue. "As you may know," Coburn wrote, "the Senate included an amendment to the NDAA for Fiscal Year (FY) 2012 on indefinite detention stating nothing shall be construed to deny the availability of habeas corpus rights. This amendment was sponsored by Senator Feinstein and Lee, and was co-sponsored by Senator Paul and others. I voted in favor of the amendment, which was agreed to in the Senate by a vote of 67 to 29. However, it was not included in the final version of the bill passed into law."

Coburn continued. "There were concerns that Sections 1021 and 1022 of the NDAA for FY 2012 authorized U.S. military forces to indefinitely detain without trial U.S. civilians anywhere in the world. Although there was language in th e bill dealing with detainees, nothing in the legislation changed laws or policy, Supreme Court precedents, or rights U.S. citizens have under the Constitution. In fact, the National Defense Authorization Act clearly states, "Nothing in this section [regarding detainees] shall be construed to affect existing law or authority relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States." This language upholds existing law and Supreme Court precedents that enemy combatants, by waging war against the United States can be detained until such conflict ends at which point they have be tried or released. The federal government had the power to detain American citizens as enemy combatants before this bill was considered."

Coburn concluded, "Please be assured I will continue to oppose any legislation that limits our inalienable rights, protected by the Constitution."

Senator Jim Inhofe said, "I am committed to protecting the Constitutional Rights of U.S. citizens, which is why I worked to include protections in last year's NDAA," and, "I will continue to ensure that the rights of Americans are protected."

In a related development, a bill by State Rep. Paul Wesselhoft (R-Moore), that would have required a warrant for any drone surveillance by the government, was killed as a result of the opposition of Gov. Mary Fallin and the Oklahoma Chamber of Commerce. Wesselhoft's bill would have required law officers to obtain a warrant before first using drones for surveillance purposes and would have stopped the equipping of drones with weapons. It appears that Fallin and the State Chamber were concerned that the bill (HB 1556) might cripple Oklahoma's economic development efforts relative to drones. Facing a gubernatorial veto, Wesselhoft amended the bill to require an interim study of the issue.

In September of 2011, Fallin created the Unmanned Aerial Systems Council, which has since produced a strategic plan to make Oklahoma the "go-to" place for Unmanned Aerial Systems (UAS) research, development and testing. The council acts as an adviser to the governor on issues related to UAS. "Oklahoma has the potential to be the number one place in the country for UAS research and development," said Fallin when she announced formation of the council. "The team we've put together on this council will help to solidify Oklahoma's potential as a national leader in this field." Fallin's Secretary of Science and Technology, Dr. Stephen McKeever, serves as chairman of the 13 member council. "Oklahoma is positioning itself to be a hub for innovation and growth in the UAS field by building strong academic R&D programs at our state universities and by establishing leading Test and Evaluation facilities and infrastructures through public-private partnerships" says McKeever.

Oklahoma was selected last June by the Department of Homeland Security to be the test site for the department's Robotic Aircraft for Public Safety (RAPS) program. Research facilities and air space around Ft. Sill, near Lawton, was the key to Oklahoma being selected for the program said Fallin. Work began last fall at Oklahoma State University's Multispectral Lab (UML) test site near Lawton. The program is being operated by UML and takes advantage of the restricted airspace around Fort Sill. The Oklahoma National Guard will also be a key partner with both DHS and the UML as the RAPS program develops. The RAPS program is expected to last three years, says Fallin, and represents a possible $1.4 million investment in the state in the first year of operations with potential for significant growth in future years.

We urge our readers to contact their member of Congress, and the governor, if you have follow-up questions on these important issues.