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

Anwar al-Awlaki


Andrew C. McCarthy

Is this really necessary? I doubt it. Even if he hypothetically could, it is highly unlikely that the commander-in-chief would use lethal force against anyone in the United States — citizen or otherwise — in this conflict. The Padilla precedent, as well as the arrest and military trial of Nazi saboteurs (including one American) after their capture here during World War II, demonstrate that, even in wartime, the executive respects our strong preference for due process in the homeland. But revising the AUMF in this way, while doing no harm to the war effort, might assuage Americans understandably perturbed by the Obama administration’s insouciance on the matter of targeted killings.

Nevertheless, it would be a mistake to extend such explicit protections to Americans situated outside the United States. American citizens do not carry the protections of the Constitution with them when they leave our country — especially if they leave at a time when Congress has authorized military force, and if they then voluntarily travel to enemy havens. American law and the writ of the American courts, on which we rely for our protection at home, do not apply outside the United States. And after all, what if our forces locate al-Qaeda emir Ayman al-Zawahiri along with some of his top aides in a compound in, say, Peshawar or Aden? Are we supposed to refrain from a lethal strike because there might be an American jihadist in the room with them?

Still, there are additional things Congress could do. Lawmakers could reaffirm that Guantanamo Bay is operational and endorse its use in detaining enemy combatants captured in the future. Congress could further emphasize that, in this conflict in which interrogation intelligence is so critical to protecting American lives, we need a policy of capturing enemy combatants when that is feasible, as opposed to killing them — particularly when the targeted terrorists are known to include Americans. As a condition of funding overseas operations, including drone strikes, lawmakers could require executive-branch disclosures about the circumstances of targeted killings in order to encourage capture and interrogation. These measures would not only reduce the likelihood of Americans being killed; they would also dramatically improve our intelligence, and thus our security.

It is not possible to wage an effective war against an international terror network while simultaneously foreclosing the possibility that American traitors will be killed in military operations. But by amending the AUMF to ameliorate legitimate concerns that the government has become too cavalier in its drone campaign, we can promote a more effective war effort — preserving drone strikes as an invaluable weapon against terrorist hideouts; prioritizing intelligence over killing; and shoring up support from Americans who strongly oppose terrorism but worry that we are losing our way.

 Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy, which is published by Encounter Books.