Rand Is Wrong, Again

by Andrew C. McCarthy
His misguided objections to Obama’s policies will give aid and comfort to the enemy.

Here’s the implication of Rand Paul’s speech on Wednesday: Barack Obama orders Anwar al-Awlaki killed, while Rand Paul would have sent the late al-Qaeda operative a subpoena and transformed him into a human shield for his fellow jihadists.

That is why only the president will profit more than radical Islam from Wednesday’s reprise of Senator Paul’s Filibuster Theatre. Obama’s maladministration has intensified the terrorist threat, but Paul’s behavior has him looking like the comparative adult in the room.

Senator Paul was speaking against Harvard law professor David J. Barron, President Obama’s nominee for the First Circuit federal appeals court. As Carrie Severino illustrates in detail at Bench Memos, Professor Barron’s agenda is to undermine the Constitution. For that, he richly deserves to be blocked. If Harry Reid’s nuclear option means that by sticking together Democrats can ram him through, the ones facing reelection should bear the weight of confirming a radical leftist.

Nevertheless, the rationale for Senator Paul’s filibuster is narrow: When Barron was an official at the Justice Department’s Office of Legal Counsel (OLC), he wrote several opinions justifying targeted killings overseas of American citizens who join enemy forces in wartime.

Talk about doing the right thing for the wrong reason.

Barron was not referring to just any American citizens but to the likes of Awlaki — a U.S. national who regarded the American people as the primary enemy in a global jihad. Before he was finally killed by a U.S. drone strike in Yemen, Awlaki was implicated in the 9/11 atrocities, the jihadist massacre at Fort Hood, the attempted jihadist bombing of a plane over Detroit on Christmas 2009, and other terrorist plots.

I agree with Paul on two points. First, he is right to object to the decision of the “most transparent administration in history” to shield Barron’s legal opinions from public scrutiny by classifying them. There is no good reason to resist disclosure of a mere legal theory offered in support of government action.

If Barron’s opinions contain facts that would compromise national-defense secrets or intelligence methods and sources, by all means redact them. But the question of whether federal law permits the government to use lethal force on foreign soil against Americans who join an enemy’s war against the United States is purely a legal one. There is no reason the legal explanation offered to answer it should be concealed.

By keeping it under wraps, the administration creates suspicions about the competence of Barron’s analysis. But that’s not the problem. No one thinks Barron is unskilled.

Recall that this administration, which has politicized national security to an unprecedented degree, had no compunction about declassifying and disclosing OLC opinions that supported Bush counterterrorism tactics — not just the legal argument for them but descriptions of the methods themselves, a boon for our terrorist enemies that delighted Obama’s political base. Thus, the current refusal to disclose is surely political, too. The president knows the Left will be outraged by his defense of the use of lethal force, while the Right will spotlight the hypocrisy of administration officials who spent the Bush years attacking the policies they’ve made their own. Avoiding political embarrassment has nothing to do with promoting national security, and I applaud Senator Paul for calling the president on it.

Second, the senator is right that the government’s treatment of its own citizens is a serious issue. That also includes American citizens situated outside the United States, where American law does not control.

Until fairly recently, it was generally assumed that the Constitution does not have extraterritorial application. American drug dealers in Mexico, for example, have no Fourth Amendment protection from being searched by American agents working with Mexican police — after all, a U.S. court has no jurisdiction to issue a warrant to search property outside the U.S. Indeed, the Fourth Amendment does not even protect Americans from being searched at the U.S. border. Nevertheless, because our government’s treatment of U.S. citizens is a matter always deserving of careful consideration, the courts have resisted a bright-line rule that the Constitution and their own writ never govern outside our borders.

More important, as I’ve pointed out in connection with our debates over surveillance authority, the Constitution is just the beginning of any analysis of our rights, not the end. Nothing prevents Congress from legislating additional protections against government action for Americans situated outside our borders — and Congress has done exactly that in several contexts. To conclude that the Constitution does not forbid everything Senator Paul opposes is not to say that his opposition is unworthy of our consideration and, perhaps, of some precautionary lawmaking.

Yet, as problematic as it may be to claim that the Constitution is completely unavailing outside our borders, even worse is Paul’s populist claim that the Constitution fully applies against our government outside our borders. Does anyone really believe an American in Yemen has the same due-process rights as an American in Peoria?

Moreover, there is a gaping hole in Paul’s contention that American citizens are deprived of due process if lethal force is used against them based on the commander-in-chief’s determination that they have joined enemy forces — a flaw I have pointed out before but for which Paul evidently has no answer.

Contrary to what the senator suggests, due process has never been thought to equal an entitlement to a full-blown criminal trial in every situation — certainly not by the Framers, and not by the Supreme Court. Due process is merely the process that is due under the circumstances. Here, we are operating under a congressional authorization for the use of military force overwhelmingly enacted days after the 9/11 attacks and reaffirmed several times since. In the AUMF, lawmakers clearly left to the president’s judgment the determination of who fits the category of enemy against whom force is authorized.

Of course, Congress did not authorize the president to take action against anyone he arbitrarily decided to strike. Force, instead, was authorized against

those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [Emphasis added.]

That is broad, but it is not boundless. Al-Qaeda planned and committed the 9/11 attacks, and there is abundant evidence that Awlaki himself at least aided if not planned them; both al-Qaeda and Awlaki have been immersed in subsequent plots and acts of terrorism against the United States.

The AUMF does not require these conclusions to be proved in court. It authorizes the president to draw them and to use force accordingly. That is not a lack of due process. The Constitution accommodates the laws of war — they are the rule of law in wartime. The president is not on a unilateral adventure here as he was in the unauthorized Libya war.

If Senator Paul truly believes American citizens are unduly threatened, the constitutional path is clear: He should propose legislation repealing the AUMF. Without the AUMF, the laws of war would not be operative — at least in the absence of an attack or threatened attack on the United States. We would be back to a pre-9/11 state in which terrorism was strictly a law-enforcement matter. Senator Paul would then have his wish: It would be unlawful to target American citizens with lethal force. But . . . we would also no longer be permitted to conduct the military operations against jihadists that have prevented a reprise of 9/11.

If the senator, despite the utter dearth of substantiating evidence, really thinks the president is so likely to kill Americans capriciously that it is worth forfeiting our capacity to strike al-Qaeda militarily, he should say so. If he’s not willing to be accountable for this choice, however, he should knock off the filibuster circus and stop making it harder to fight jihadists who are trying to kill our fellow Americans.

Instead, Paul proposes to prohibit the killing of Americans in overseas theaters of war even if they are believed, based on reliable intelligence, to have joined enemy forces. Jihadists with U.S. citizenship would be immune as long as they are “not engaged in combat” at that moment.

What does “not engaged in combat” mean? Does meeting with other jihadists count? Plotting? Or just detonating bombs? Beats me. My best guess is that “not engaged in combat” means “not in the act of projecting force.” That strikes me as a huge problem. Even the most deadly terrorists spend most of their time “not engaged in combat.” Like Awlaki, Osama bin Laden spent most of his life that way. Some of the 9/11 suicide-hijackers were here in our midst for nearly two years “not engaged in combat” while they prepared to kill thousands of us in one fell swoop.

If an American jihadi like Awlaki were plotting an attack against the U.S. but not actively executing it, Paul’s proposal would not merely prevent the president from taking action against Awlaki.

Let’s say, as one would expect, Awlaki was in an al-Qaeda safehouse in Yemen with five or ten non-American, hardcore al-Qaeda leaders planning attacks against U.S. targets. Senator Paul’s proposal would make Awlaki their human shield: As long as they were “not engaged in combat” — and as long as they were smart enough to keep a jihadi with a U.S. passport in their company — our armed forces would be prohibited from targeting them with a missile.

Senator Paul seems to think, erroneously, that this is what due process requires for the American terrorist. He’d do better to worry about due process for the rest of us — the Americans those jihadists might kill, and the American troops whose operations become far more perilous (and whose mission becomes futile) if they cannot attack the enemy.

In a statement issued last week, Paul claimed that there was “no valid legal precedent to justify the killing of an American citizen not engaged in combat. In fact, one can surmise as much because the legal question at hand has never been adjudicated.”

Once again, as a constitutional lawyer, Dr. Paul makes a good ophthalmologist. In Ex Parte Quirin, the post–World War II case involving Nazi saboteurs captured in the United States before they could engage in terrorist acts, the Supreme Court ruled that the saboteurs could be detained as enemy combatants, tried by swift military commission, and executed — no civilian due process. The facts that at least one of them was an American citizen who had “not engaged in combat” yet, that the federal courts were open and functioning, and that the writ of habeas corpus had not been suspended made no difference. In the 2004 Hamdi decision, the Supreme Court reaffirmed that an American citizen who joined the enemy in wartime could be treated just like a foreign enemy combatant — in Hamdi’s case, captured in battle and detained without trial.

And pace Senator Paul, the fact that the legality of certain government actions has never been adjudicated does not necessarily indicate that they are illegal. It more likely means that those actions do not come up that often (thankfully, few Americans join the enemy in wartime). It also more likely means that closely related government actions have been adjudicated. Those adjudications establish principles that help us gauge the propriety of analogous actions without the need to adjudicate them.

The principles to be derived from relevant Supreme Court jurisprudence are that (a) due process does not require civilian trials for enemy combatants in wartime, and (b) Americans who collude with the enemy may be treated as enemies — especially if Congress has explicitly authorized the president to determine who fits its definition of the enemy. This makes perfect constitutional sense: The Constitution empowers Congress to authorize combat and the commander-in-chief to oversee the conduct of combat. Senator Paul would set the Constitution aside and turn wartime decisions over to federal judges.

Like his father before him, Senator Paul has a libertarian following, some of whom have convinced themselves that counterterrorism measures are more of a threat to our country than terrorism itself. In some ways, this is understandable. A dozen years ago, the average young adult’s formative experience was 9/11; today, it is the daily shredding of the Fourth Amendment at airports and public buildings, where political correctness has institutionalized unreasonable searches. But the fact that there has been excess in counterterrorism does not mean all counterterrorism is excessive. The use of lethal force authorized by Congress against our enemies on foreign soil is vital to our security, even if a few of those enemies hold American citizenship.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His next book, Faithless Execution: Building the Political Case for Obama’s Impeachment, will be released by Encounter Books on June 3.

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