An assassination may have military consequences, but it is not mainly a military act — war and assassination are different and distinct branches of politics. That does not mean that the law does not come into play: Mr. McCarthy may believe the president can set aside mere statutes, but he frequently justifies our detentions of al-Qaeda suspects as necessary prophylactics against “war criminals,” and the legal contortions that have been used to justify what we’re still calling with mostly straight faces the “enhanced interrogation” program have been a thing of wonder to meditate upon. The necessary thing to remember, these conservatives insist, is that since 9/11 the nation has been at war. In truth, we’ve been inching our way toward carrying out assassinations since well before the terrorist attacks of 2001. Clinton-administration officials told the Washington Post in 1998 that targeting Saddam Hussein was one possible contingency in case of hostilities with Iraq. Killing a hostile head of state as a prelude to combat operations is probably defensible; the slippery slope to assassinating American citizens was lubricated by the grief and rage of 9/11. There was remarkably little discussion given to it, the War on Terror having brought out the destructive strains of American exceptionalism. It is impossible to imagine that the United States would accept that the King of Sweden or the Grand Duke of Luxembourg has the legitimate right to conduct assassinations in the United States on the theory that we might be harboring enemies who wish them ill; to say the words is to appreciate their inherent preposterousness. But our own president is empowered to target our own citizens, wherever they may be found, without even so much as congressional oversight.
Among other intolerable consequences, this line of thinking means that if the president starts assassinating U.S. citizens helter-skelter, then the law is powerless to stop him, Congress is powerless to stop him (short of impeachment), and we’ll just have to wait for the next election. That is what is meant by “political limits” on executive power, as opposed to legal limits. It is an inadequate control.
These beliefs are relatively new to conservatives, being for the most part an artifact of the Bush years. One needn’t roll the clock back very far to discover a time when conservatives took a starkly different view of executive powers. After the fiasco at the Branch Davidian cult compound near Waco, Texas, the Right not only was willing to see executive-branch personnel subjected to the indignity of answering a subpoena but was in fact insistent that “mere statute” be used to put some of them in prison. Elliott Abrams, writing in National Review, called for investigations, arguing that “the balance between energetic law enforcement and limits on excessive government power will not be maintained if the Justice Department does not seek vigorously to maintain it.” On National Review Online, Deroy Murdock lamented the “maddening culture of impunity in which few officials face serious consequences for violating the law. This double standard, in which federal badges become licenses for lawlessness, typified the Clinton-Reno years.” He added that federal actions “involved an unlawfully extreme indifference to human life. Such misconduct often yields second-degree murder charges. But not at Waco.” Or for the would-be assassins of Awlaki. The Clinton administration was enough to make a limited-executive man, at least for a little while, out of John Ashcroft, who wrote: “The Clinton administration’s paranoid and prurient interest in international e-mail is a wholly unhealthy precedent, especially given this administration’s track record on FBI files and IRS snooping. Every medium by which people communicate can be subject to exploitation by those with illegal or immoral intentions. Nevertheless, this is no reason to hand Big Brother the keys to unlock our e-mail diaries, open our ATM records, read our medical records, or translate our international communications.” John Ashcroft felt differently after 9/11, as we all did. But John Ashcroft’s feelings are not what govern the United States.
The evolution of conservatives’ attitudes toward unchecked executive power is cautionary: If some of us who have historically been skeptical of the state and its pretenses are so quickly seduced by the outside observation of absolute power, how much more alluring must the prospect prove to the men who actually employ that power? Conservatives ought to admit that the presence of one of our own in the White House made us much more amenable to executive arrogations, and that the antiwar movement that tormented the Bush administration brings out a kind of Pavlovian response in us: Whichever side of the barricades the placard-carrying hippies and ANSWER dirtbags are on, we want to be on the other. That’s a salubrious instinct, but it can distort our thinking, inasmuch as the civil libertarians are not always wrong about everything. And we should appreciate that the Obama administration has intentionally made this matter public, leaking the details to the Washington Post: This is not a covert operation, but the establishment of a precedent. It is time to restore our ancestral suspicion of executive power.