War-Power Paranoia
From the Nov. 15, 2010, issue of NR.


Andrew C. McCarthy

It would be hard to overstate how divorced this is from reality. Though a stickler for statutory law, Mr. Williamson seems not to notice that the War on Terror — which he belittles as “metaphorical” — is a real war in the statutory sense. Combat operations ensued only because Congress passed a sweeping authorization for the president to use military force against al-Qaeda, its operatives, and its affiliates. Legislative appropriations have reaffirmed the Authorization for Use of Military Force (AUMF) for nine years. Congress is free to repeal the AUMF — it would probably have to override a presidential veto to do so, but if Mr. Williamson’s assassination-list nightmare were a reality, the numbers for that would be there. Were Congress to repeal the AUMF, the president would have no authorization to kill anyone — American or otherwise — unless it were done in response to an attack or imminent threat against the United States (or, perhaps, in a covert operation against a dire foreign threat, carried out as prescribed in the relevant statute).

Could a president abuse his powers? Of course. All power can be abused — including legislative and judicial power. But the basic check against that possibility is political, not legal. Mr. Williamson implausibly argues that “political limits” are inadequate against the president and must be supplemented by “legal limits.” Courts, however, have no power to enforce their injunctions — for that, they must rely on the executive branch, and an executive branch that maintains a list of citizens it plans to assassinate will be unlikely to enforce injunctions against itself. By contrast, a president who really did the horrific things Mr. Williamson imagines President Obama doing would find his war authorization rescinded, his military and intelligence services defunded, and himself impeached. A president guilty of less heinous excesses might not be impeached, but he would find his popular support dramatically eroded. As Mr. Obama is finding, that has political consequences — among them electoral ones — that curtail the presidential capacity for malfeasance. This is the genius of the system.

Ironically, the sort of improvident legal limits Mr. Williamson urges are likely responsible for the assassination authorization he condemns. To understand why, consider Anwar al-Awlaki. Mr. Williamson limns him as a mere “preacher” and “author of invective.” Yet, to the intelligence community, which just might have better information, he is an al-Qaeda recruiter who, while in the U.S., encouraged 9/11 hijackers and Fort Hood terrorist Nidal Hasan; and who, once holed up in al-Qaeda’s safe haven in Yemen, went “operational” and guided Umar Farouk Abdulmutallab’s attempted Christmas Day bombing of a plane over Detroit.

That is more than enough to consider him an enemy combatant. Yet, hamstrung by federal courts and international tribunals, our overlawyered military and intelligence services are paralyzed by any perception of potential legal liability. Given that Awlaki is an American citizen, they doubtless fear taking action against him without the cover of a presidential authorization. And given the political heat President Clinton took for failing to give the CIA clear orders to assassinate bin Laden when the agency had opportunities to do so, it was plainly in President Obama’s interest to provide a clear authorization in Awlaki’s case. Otherwise, after the next 9/11, he could find himself in the Clinton hot seat, unable to explain why the military shrank from firing a cruise missile at a high-level al-Qaeda confab just because Awlaki happened to be in the room.

That’s all the assassination authorization for Awlaki is: legal cover if circumstances arise under which killing him is the best military option. And here we arrive at the central absurdity in Mr. Williamson’s argument. Though minimizing him, Mr. Williamson concedes Awlaki is a bad actor and has no objection to his being killed on the battlefield. Since Mr. Williamson doesn’t see that as problematic, he can’t fathom why our armed forces would want insurance — though it is they, not he, who would be hauled into court by Awlaki’s family. But the authorization to assassinate Awlaki does not mean the administration would have him killed if it encountered him coming off a plane in Chicago, à la José Padilla — a U.S. citizen captured, not killed, by the Bush administration. Nor does it mean our forces would kill Awlaki if they could apprehend him in a foreign country under circumstances in which detention was the more practical option, à la U.S. citizen Yaser Hamdi and al-Qaeda bigwig Khalid Sheikh Mohammed. 

At the Corner, Mr. Williamson expressed astonishment that, as a severe Obama critic, I would give the administration the benefit of the doubt on this one. But I am an Obama critic only where the evidence warrants it. As Mr. Williamson observed, I accused the administration of a “grave violation of law” in civil-rights enforcement — but Justice Department lawyers have testified that Obama officials have imposed racially discriminatory charging practices. As Mr. Williamson noted, I’ve argued that the Obama administration shares much of the Islamist critique of the United States and has staffed the Justice Department with terrorist sympathizers — but there is a mountain of evidence to that effect. If Mr. Williamson has evidence for what he alleges — that President Obama has a list of Americans to be assassinated and is planning to carry out those killings — I’m all ears. But there is no evidence in his essay. Where I come from, a comparable lack of evidence gets your case laughed out of court.

There is no runaway executive branch, nor an “assassin-in-chief” drawing up hit lists of citizens. Usually, one encounters such hallucinatory analyses from feverish lefties or libertarian extremists, who hear in the most commonsense security measures a death knell for the Bill of Rights. In the real world, we have the most tightly regulated chief executive in our history — searchingly overseen by Congress and micromanaged by the courts in a manner that would have shocked the World War II–era judiciary, to say nothing of the Framers. Mr. Williamson should relax. The president has been successfully shackled.

Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.