Here are two facts: (1) Anwar al-Awlaki is an American citizen and an al-Qaeda propagandist. (2) Pres. Barack Obama proposes to assassinate him. Between the first fact and the second falls the shadow.
The Awlaki case has led many conservatives into dangerous error, as has the War on Terror more generally. That conservatives are for the most part either offering mute consent or cheering as the Obama administration draws up a list of U.S. citizens to be assassinated suggests not only that have we gone awry in our thinking about national security, limitations on state power, and the role of the president in our republic, but also that we still do not understand all of the implications of our country’s confrontation with Islamic radicalism. The trauma of 9/11 has deposited far too much emotional residue upon our thinking, and the Awlaki case provides occasion for a necessary scouring.
Contra present conservative dogma, the Constitution has relatively little to say about the role of the president in matters of what we now call national security, which is not synonymous with combat operations. What the Constitution says is this: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” That is all. Upon this sandy foundation, conservative security and legal thinkers have constructed a fortress of a presidency that is nearly unlimited or actually unlimited in its power to define and pursue national-security objectives. But a commander-in-chief is not a freelance warlord, and his titular powers do not extend over everything that touches upon national security. The FBI’s counterterrorism work, for example, is critical to national security, but its management does not fall under the duties of a commander-in-chief; it is police work, like many of the needful things undertaken in the War on Terror. The law-enforcement approach to counterterrorism is much maligned in conservative circles where martial rhetoric is preferred, but the work of the DOJ, FBI, NYPD, etc., is critical. It is not, however, warfare
A commander-in-chief does not have unilateral authority to invade foreign countries or to name belligerents, and it is clear that the Founders did not intend to give the president that kind of unchecked war-making power, much less to compound it with unchecked domestic police and surveillance powers, which is why the power to declare war resides with Congress rather than with the president. Our Constitution, as in all things, relies upon checks and balances when it comes to the conduct of war. It is significant that the final powers — to declare war, to ratify a peace treaty, to punish treason — do not rest with the president, but with Congress.
Congress deploys its checks and balances through passing laws, but many conservatives now argue that the president need not follow them. It is no exaggeration to write that a key plank in their platform is the belief that the law does not apply to the president or to his employees. Being a co-equal branch of government, conservatives argue, the executive is not bound by what my colleague Andrew C. McCarthy habitually refers to as mere “congressional statute” — i.e., the law — when pursuing its constitutional national-security duties. I do not wish to exaggerate Mr. McCarthy’s position, so I will let him speak for himself. For example, he acknowledges that “Bush’s ‘Terrorist Surveillance Program’ did not comply with the letter of a congressional statute, the 1978 Foreign Intelligence Surveillance Act,” but maintains that the administration was not obliged to follow the law in this case, because of a superseding constitutional investiture. Mr. McCarthy dismisses the notion that “the president acts illegally whenever he transgresses a statute” and argues that Congress “violated constitutional separation-of-powers principles” merely by issuing subpoenas to White House staffers in the course of a criminal investigation. He argues that in national-security matters, the president’s conduct is “more a political matter than a legal one.” For a great many conservatives, President Nixon’s most cracked assertion — “When the president does it, that means it is not illegal” — is now an article of faith, but President Reagan’s Executive Order 12333 banning assassinations is a dead letter.
Running with the ball we passed him, Obama and his administration now insist on the president’s right not only to order the assassination of U.S. citizens, but to do so in secret, without oversight from Congress, the public, or anybody else. Barack Obama today claims powers that would have made Julius Caesar blush.