"Public Authority," Drone Murders, and the Death of the Rule of Law

by William Norman Grigg
Jun. 25, 2014

In America, wrote Thomas Paine, “the law is king.” In a totalitarian state, Vladimir Lenin wrote more than a century later, rulers exercise “power without limit, resting directly on force, restrained by no laws.”

Lenin’s formula was a blunt expression of what is known as the “public authority justification” for government action. That doctrine, as explained by one legal scholar, holds that “Deeds which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will … or even taking his life, are not crimes if done with proper public authority.”

In other words, government can give itself permission to break the law. This claim is central to the recently-released 2010 Justice Department memorandum defending the Obama administration’s claim that the president can order the summary execution of US citizens through drone strikes. All that is necessary is for the president to designate a targeted citizen as an unlawful combatant. Once this is done, the extra-judicial murder is sanitized by the miracle of “public authority,” thereby becoming a supposedly lawful exercise of war powers.

This is the doctrine the permitted Barack Obama to authorize the murder of a 16-year-old US citizen – an act, and a claim, demonstrating that the rule of law is dead.