For the Rest of the World, the U.S. President Has Always Been Above the Law

The U.S. Supreme Court’s decision on former President Donald Trump’s claims of criminal immunity has provoked grave warnings about a new expansion of presidential power. On July 1, the Court ruled 6–3 along partisan lines that presidents are immune from criminal prosecution for “official acts” but found that they may still be prosecuted for unofficial acts. “The Court effectively creates a law-free zone around the President,” wrote Justice Sonia Sotomayor in her dissent. “In every use of official power, the President is now a king above the law.”

Many commentators have echoed her critique. The ruling “jettisons the long-settled principle that presidents, like all others, are subject to the operation of law,” observed the legal scholar Kate Shaw. “If the president is a king, then we are subjects, whose lives and livelihoods are only safe insofar as we don’t incur the wrath of the executive,” warned the New York Times columnist Jamelle Bouie. “If Trump, as commander in chief, ordered his troops to assassinate somebody or stage a coup, that would seem to fall within the absolute immunity provision of the court’s decision,” explained the legal scholar Cheryl Bader. Judge Aileen Cannon’s decision on July 15 to dismiss the charges against Trump for mishandling classified documents, while likely to be appealed and overturned, has added to the chorus of concerned voices.

What most analysts have failed to note, however, is that this lack of legal accountability for decisions by the U.S. president, including decisions to direct the military to use lethal force, is nothing new. It has long been the reality for most of the world outside the United States. For decades, American presidents have waged illegal wars, plotted to assassinate foreign leaders, unlawfully detained and tortured people, toppled democratic governments, and supported repressive regimes without any possibility of legal accountability in either domestic or international courts.

Although people all over the world have suffered from these unlawful acts, Americans have lived in a bubble—a bubble this Court decision has finally burst. Indeed, what is so frightening about this decision is that it has the potential to make the president’s actions within the United States just as unchecked as they are outside it.

DEADLY FORCE

In her dissent, Sotomayor outlined a disturbing example of the type of action a president could now take and expect criminal immunity, thanks to the Supreme Court’s ruling: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.” Yet the president has long had the ability to order the U.S. military to kill with impunity. In the years since the 9/11 attacks in 2001, American presidents have overseen a vast expansion of the U.S. military’s use of lethal force abroad, sometimes in ways that have violated international law, domestic law, or both.

Around 300,000 Iraqi civilians were killed as a direct result of the U.S. war in Iraq beginning in 2003, a war that UN Secretary-General Kofi Annan called “illegal.” More than 70,000 Afghan and Pakistani civilians are estimated to have died as a direct result of the war against the Taliban, al Qaeda, and associated forces in Afghanistan beginning in 2001. The United States justified that war as lawful under Article 51 of the UN Charter at a time when few states had accepted that Article 51 could be used to justify wars against nonstate actors.

The U.S. military participated in ongoing combat in Afghanistan for two decades and faced serious allegations of war crimes, including torture at a detention center at Bagram Air Base. Bagram was just one of several U.S. detention facilities at which detainees were tortured. The United States operated unlawful CIA “black sites” in several locations around the world, such as Kosovo, Lithuania, Poland, Romania, and Thailand, where it held and tortured detainees in secrecy.

Around 300,000 Iraqi civilians were killed as a direct result of the U.S. war in Iraq.

Hundreds died in the 2011 war in Libya led by NATO with significant U.S. participation. Although the war was authorized by the UN Security Council, the U.S. Congress never approved U.S. participation in it. Two top administration lawyers advised that the U.S. law known as the War Powers Resolution required that the war cease after 60 days. President Barack Obama disregarded that advice, deciding instead to side with two other top administration lawyers who argued that the military operation in Libya did not amount to “hostilities” and therefore was not subject to that law.

Between 2021 and 2023, the U.S. government conducted counterterrorism operations in 78 countries, including ground combat missions in at least nine countries. Now with over 11,000 unmanned aircraft systems, the United States has the capacity to conduct airstrikes in much of the world with little notice. These systems, commonly known as drones, are generally used to target and kill suspected terrorists. In the recent past, those strikes included “signature strikes”—lethal strikes against people whose identity was unknown but whose observed behavior was consistent with that of terrorists. A target could include, for example, a male of military age carrying what appears to be a weapon in an area where fighting has taken place. In the last several years, the United States has conducted airstrikes in at least four countries. Most of these operations have been based on a tenuous reading of a law passed by Congress a week after the 9/11 attacks authorizing the president to use force against those who carried out the attacks and any country, organization, or persons who harbored them.

All these actions raise difficult legal questions about which there remains ongoing disagreement. U.S. government lawyers can and have come up with legal arguments to defend them—some more plausible than others. But few of these arguments have ever been made public or been tested in court.

THE SHORT ARM OF THE LAW

For years, attempts have been made to hold the United States accountable for its unsanctioned violence. Lawyers in the United States and overseas have filed case after case challenging U.S. military and CIA operations abroad, but few have made it past procedural and jurisdictional hurdles. As a result, the U.S. president has long been a “king above the law” when it comes to actions outside the United States.

Legal challenges in U.S. courts to wars waged by the president without the constitutionally required authorization of Congress have been repeatedly dismissed by U.S. courts in recent decades. The courts have dismissed the cases before even hearing the arguments about whether the president is violating the law. Instead, they have generally concluded that the cases present political questions that the courts are not well suited to resolve or that the plaintiffs lack standing. The effect of these decisions has been to flip the constitutional order on its head—requiring Congress to muster supermajorities in both houses to try to stop a president from waging war rather than requiring the president to get congressional approval in advance to do so.

Even U.S. citizens have been killed without any accountability or legal review. Anwar al-Awlaki’s father sued Obama in U.S. federal court seeking to remove al-Awlaki, a U.S. citizen, from the U.S. targeted killing list. Not long after the court dismissed the suit on the grounds that it presented political questions and al-Awlaki’s father lacked standing, the U.S. government killed al-Awlaki in a drone strike. Al-Awlaki’s 16-year-old son, also a U.S. citizen, was killed in a drone strike two weeks later. His eight-year-old daughter, also a U.S. citizen, was killed in a U.S. commando raid several years later. No court assessed the legality of these decisions to use lethal force.

The well-documented program of torture has also led to little accountability. After taking office in 2009, Obama decided to investigate only two instances of detainee mistreatment leading to death, despite ample evidence of an expansive U.S. government program of unlawful detention and torture in the years following the 9/11 attacks. Obama later closed the investigation into the two deaths and into the destruction of interrogation videotapes by the CIA without initiating criminal charges. No significant administration officials involved faced any discipline. One became a federal judge. Gina Haspel, who, according to the New York Times, watched while a detainee was subjected to “enhanced interrogation” and waterboarding at a CIA black site that she ran in Thailand, later became the CIA director during the Trump administration.

With criminal accountability off the table, plaintiffs harmed in the “war on terror” filed civil lawsuits in U.S. courts against the U.S. government and U.S. government officials under the Alien Tort Statute (ATS), which allows non-U.S. citizens to file lawsuits seeking damages for harm done to them as a result of violations of international law. Hope Metcalf, who represented victims of torture at the hands of U.S. officials, recalled, “we ran into 7,000 different obstacles” and “none of the ATS lawsuits progressed except against private contractors many years later.” Very few of those lawsuits reached the merits; most failed for the lack of jurisdiction or on grounds of sovereign immunity. In its most recent decision on the law, the Supreme Court dealt the statute a major blow by holding that it doesn’t apply to conduct that takes place outside the United States.

Even U.S. citizens have been killed without any accountability or legal review.

The few attempts at legal accountability in foreign courts also quickly faltered. A war crimes lawsuit in Belgium against President George H. W. Bush and Secretary of State Colin Powell filed by Iraqi victims of the 1991 Gulf War was dropped under heavy diplomatic pressure from the U.S. government. In February 2011, President George W. Bush canceled an appearance in Geneva amid the threat of criminal proceedings against him for his involvement in the post-9/11 U.S. torture program.

The United States has not agreed to the jurisdiction of any international court that might have jurisdiction to determine whether the wars it wages are lawful. When the International Criminal Court began an investigation into allegations of torture by U.S. forces in Afghanistan (the ICC had jurisdiction because Afghanistan is a party to the Rome Statute that created the court), the Trump administration used unprecedented economic sanctions against the court’s judges and staff to bully it into “deprioritizing” the prosecution. That case has remained at a standstill.

The absence of any legal accountability for multiple presidents’ actions abroad is made even worse by the absence of any political accountability. U.S. citizens who are upset about a president’s actions at home or abroad at least have the opportunity to vote in the presidential election. They also have the opportunity to vote for members of Congress who could—at least in theory—impeach and remove the president from office for breaking the law. But voting for the president or for members of Congress is not an option for non-U.S. citizens who live in the many countries where the U.S. president has ordered forces to carry out targeted killings or topple their governments. In this respect, U.S. citizens remain in a privileged position even after the Supreme Court’s decision in Trump v. United States. Indeed, it is striking that a country that rightly celebrates its commitment to the rule of law and democratic principles of governance has come to assert such global control with so little legal or political accountability to those most significantly affected by its government’s actions.

None of this is to defend the Supreme Court’s decision granting the president immunity for official acts. Its critics are right that it is antithetical to the American democratic ideal that power must be accountable to law. But the outrage prompted by the Supreme Court’s decision reflects little understanding of the way in which many of the actions of the U.S. president have long been felt and understood in much of the rest of the world.

HOW TO BE AN ACCOUNTABLE SUPERPOWER

Addressing the problem of impunity requires addressing not just the absence of criminal accountability for the clearly unlawful acts of the president in the United States but also the long-standing absence of accountability for the clearly unlawful acts of the president and the government the president leads around the globe.

In other parts of the world, patience with unaccountable power—American or otherwise—may be growing thin. An unprecedented 43 states referred the situation in Ukraine to the ICC. That investigation has already resulted in six arrest warrants, including for Russian President Vladimir Putin. There has been a concerted global effort to use Russia’s central bank assets to help pay for the harm done by Russia during its unlawful war in Ukraine. Momentum is also growing behind an effort to create a new tribunal to try the crime of aggression in Ukraine. Meanwhile, Israeli Prime Minister Benjamin Netanyahu is facing his own likely arrest warrant from the ICC. And a French court recently upheld an arrest warrant for Syrian President Bashar al-Assad.

The United States has a long-fraught relationship with the ICC. One step toward addressing impunity at home and abroad would be to continue to strengthen U.S. ties with the court. A first step is to stop threatening to level sanctions at the court, as members of Congress recently did in the wake of the announcement that the ICC prosecutor Karim Khan was seeking arrest warrants against Netanyahu and Israeli Defense Minister Yoav Gallant. The United States should also continue to support the work of the court, as it has with the investigation into Russian war crimes.

In other parts of the world, patience with unaccountable power may be growing thin.

But that is not enough. The United States should also accept that it is not immune from the ICC’s jurisdiction when it allegedly commits crimes on the territory of a state that is a party to the court. That does not have to mean turning U.S. citizens over to The Hague. It instead requires demonstrating that the United States has undertaken a genuine effort at providing accountability for the same crimes at home. After all, the ICC is set up as a court of last resort—stepping in only when domestic courts are unable or unwilling to do so.

The U.S. government can also provide more robust civil accountability when it wrongfully commits harms abroad. The U.S. military already provides ex gratia payments in limited circumstances in which it acknowledges that civilians have been harmed by U.S. military action. For example, the United States regularly provided voluntary condolence payments to the civilian victims of U.S. military operations in Afghanistan. But that system comes nowhere close to providing accountability for the harms done in war, including the many civilian deaths caused by “mistake.” The United States could pioneer a more robust compensation program that would permit civilians to seek compensation for harm done to them or their property as a result of U.S. military operations—adopting a “war torts regime” to minimize needless civilian suffering.

Congress should also reclaim its constitutional role in deciding when the United States engages in military operations abroad. A critical first step would be to revise the War Powers Resolution to clearly define “hostilities” and establish a funding cutoff for any war that extends beyond 60 days unless specifically authorized by Congress. Doing so would make it harder for presidents to wage wars without seeking assent from Congress.

The problem of presidential immunity—and the capacity of the president to act outside the law—was not created by the Supreme Court’s decision in Trump v. United States. It was simply exposed and expanded by it. Outside the United States, American presidents have long been able to violate the law with impunity, inflicting death and property destruction on civilians in the process. Now that this is also true in the United States, perhaps there will be the will to do something about it.

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