The Problems of the White Paper
To linger on the hypocrisy is to miss the big picture.


Andrew C. McCarthy

Who knew? Indeed, who knew that Clarence Thomas — Clarence Thomas — had become Obama’s favorite Supreme Court justice? The Left used to point out gleefully that, in the critical 2004 Hamdi case, which reaffirmed that American-citizen enemy combatants may be detained without civilian due process, none of the other eight justices agreed with Thomas’s embrace of the Bush administration’s expansive take on executive war power. Now, Obama and Holder extensively quote Justice Thomas — as if the Left hadn’t spent eight years smearing him and Bush and every national-security conservative as a Constitution-shredding monster.

It is tempting to dwell on Obama’s political posturing, on the fraud that runs through everything from Left’s condemnation of waterboarding to its precious fretting over Bush’s Gitmo “gulag” — as opposed to the Obama graveyard. To linger on the hypocrisy, however, is to miss the big picture. That requires us to look at three things.

The first is that, on the central question, the administration is right: The commander-in-chief does have the power in wartime to use lethal force against American citizens who join with the enemy, and there is no judicial recourse. The Obama/Holder blather about “false choices” was absurd, because no choice is involved at all: “Our values” are reflected in the Constitution, which calls for due process under the prevailing circumstances, not judicial process under all circumstances. When hostilities rage, “our values” include the laws of war. Under them, enemy combatants may lawfully be killed, captured, and detained without trial, or tried by military commission.

That goes for American enemy combatants, too — continued foot-stamping to the contrary from progressives and libertarians notwithstanding. The Supreme Court has repeatedly ruled that American citizens who fight for the enemy may be treated like the enemy. Ever notice that the people forever insisting on judicial interventions are the first to ignore the courts when the rulings go against them?

The second big-picture issue is the substance of the Obama guidelines. Despite proceeding from a sound premise, the Justice Department white paper is dangerously misguided. Ironically, this is mostly because the administration is guilty of exactly the error the Left accused President Bush of, often unfairly: an executive imperialism that fails to respect Congress’s war powers and to seek legislative buy-in.

No credible person questions the following two propositions: (1) The president has not only the authority but the obligation to use any force necessary to repel attacks or prevent truly imminent attacks; and (2) when combat operations are authorized by Congress, which is endowed with the constitutional power to declare war, the president may use any force he judges necessary within the parameters of Congress’s authorization. In those two situations, if American citizens are killed while fighting for the enemy, there is no constitutional violation.

Nevertheless, outside these two situations, presidents can veer into lawlessness. Executive war-making is on thin ice, at best, if it exceeds Congress’s combat authorization (or if Congress has not given authorization), and if the United States is not otherwise under either attack or the imminent threat of attack. The Obama guidelines are heedless of these limitations.

The white paper suggests that, independent of congressional authorization, the president has some amorphous reservoir of authority — created by a combination of his general Article II powers and international law (particularly the latter’s recognition of a self-defense right) — to instigate military operations on his own. The administration would comfort us regarding this imperious claim by purporting to limit it to “imminent” attack situations, and stipulating that lethal force should be used against Americans only when capture is “infeasible.” But the guidelines provide Orwellian definitions of imminence and feasibility — such that these are not really limitations at all.