How Should We Treat American Jihadists?
The legal answer is not going to help us.

Anwar al-Awlaki


Andrew C. McCarthy

Padilla succinctly illustrates the difference between what may be done in theory and what should be done in the given situation. In the terror-laden atmosphere of the months right after 9/11, he was sent to the United States by al-Qaeda commanders to carry out a “second wave” of mass-murder attacks. He was engaged in that conspiracy at the moment he was confronted by government agents. So would it have been legitimate to strike him with lethal force? An interesting question on a law-school exam maybe, but as a matter of practical reality the answer is simple: No.

In the 2001 AUMF, Congress authorized the president “to use all necessary and appropriate force” against those he determined to be enemy combatants. What is “necessary and appropriate” is not a matter of hypotheticals and worst-case scenarios. It is determined by the actual circumstances. Padilla was encountered in Chicago, not Yemen. Our homeland was not then under attack, and the police — local, state, and federal — were ensuring order. Yes, Padilla was conspiring, but he was not in the act of carrying out a terrorist attack. There could be no credible claim that the attacks he was plotting were imminent — he was captured coming off a plane at O’Hare, not mixing explosives in a safe-house on the South Side. The situation presented a relatively easy opportunity to apprehend him: Agents knew he was coming in on the flight, they prepared an arrest plan well in advance, and Padilla offered no resistance.

In short, Padilla’s case shows that we do not need to bog down in the futility. We can function effectively in the current conflict without trying to map an ultimate boundary between war power and due process. Padilla was captured, detained for a lengthy time as an enemy combatant, and eventually convicted at a civilian trial. That last development hardly proves that civilian trials always make sense for enemy combatants. Indeed, Padilla could not be tried for the second-wave plot because it was based on intelligence that could not be used in court. But we got lucky: He had been involved in a second jihadist scheme, about which investigators managed to cobble together a winning case. The point, however, is that Padilla was handled appropriately. Maybe more onerous measures could theoretically have been taken, but none should have been taken — and none were.

It has been over a decade since Padilla’s 2002 arrest. We know much more now than we did then about the size and scope of our jihadist enemies, the areas where they operate, and the extent — thankfully, very limited — of American-citizen complicity in their schemes. It is thus past time for Congress to amend its 2001 AUMF to reflect our updated, superior understanding of the enemy.

Let’s move beyond pointlessly concocting ultimate limits on presidential war powers. They will only tie our hands in future conflicts. And for his part, the president should not be using internal Justice Department memoranda to inflate his war powers — particularly, the power to kill Americans as an incident of war — in order to defend his turf against congressional or judicial encroachments. The task is to apply what we now know to arrive at sensible guidelines for the current conflict.

I’ve argued here that, after a dozen years, the AUMF’s definition of the enemy needs overhaul. So, similarly, does its explanation of what force Congress is authorizing. Again, lawmakers need not address all the hypothetical situations in which it might be proper to target American citizens. But nothing prevents Congress from amending the AUMF to provide explicit protections for Americans suspected of colluding with this unique enemy. Congress could, for example, instruct that in the absence of an attack or a truly imminent threat, the president is not authorized to use lethal force in the United States against Americans suspected of being enemy combatants. Congress could also define what it means by “imminent” so it is clear that lawmakers do not endorse the Obama administration’s preposterous interpretation of that term.