What Rand Paul Misses
Congress, not the Constitution, should curtail the president’s war powers.

Senator Rand Paul, mid-filibuster


Andrew C. McCarthy

Really? Let’s imagine something that, unlike Senator Paul’s speculations, is actually foreseeable — a scenario based on the way our enemies function, as remote from the Washington debate as that may be. Let’s suppose we have an American scholar of Islam fulfilling the role of the Blind Sheikh — i.e., a jurist schooled in sharia with sufficient academic depth to be qualified to issue fatwas approving terrorist attacks.

Ostensibly, our American sheikh might be sitting passively in a mosque, a café, or an apartment. He certainly doesn’t look like an enemy combatant — especially if, as was the case with the Blind Sheikh, various maladies render him incapable of building a bomb, carrying out an assassination, or doing most things of use to a jihadist cell. Yet in the enemy’s doctrine, attacks cannot happen until he green-lights them. Senator Paul says he’s fine with lethal force against imminent threats. So, when does our sheikh get imminent? When the phone rings? When some other innocent-looking young man comes into the café, sits down at his table, and starts whispering in his ear?

Now, after 20 years, it is probably safe to say there is no need to have our armed forces on alert for this contingency. If the executive branch has enough intel to know who and where this sheikh is, the FBI can arrest him, just as the FBI arrested José Padilla as he disembarked from a plane in Chicago in 2002 — every bit the enemy combatant, though not yet acting on his mass-murder plot. That is how war power has always worked under the Constitution: Having the technical law-of-war justification to kill José Padilla does not require you to kill him. You do what is sensible under the circumstances.

In the ongoing conflict, the enemy does not have fortifications inside our territory that would enable its operatives to keep the police at bay. As long as we catch them in time, our enemies can be safely taken into custody. And if we catch them on the precipice of deadly action, ordinary law-enforcement principles allow for the use of lethal force to stop them.

But that may not always be the case. We could have enemies with much greater capabilities, enemies including traitorous Americans. The fact that we do not appear to need lethal military force in the homeland in this conflict does not mean we will never need it.

So leave the Constitution alone. The Constitution does not tell us what should or must be done in a particular situation. It tells us the outer limits of what is legitimate in all threat situations. To shackle our power to meet a threat, as Hamilton explained, is to put us in peril.

The goal, according to Senator Paul, is to shackle the president. That is done by trimming his sails in the Authorization for Use of Military Force (AUMF), not by trimming his constitutional power.

Senator Paul has the controversy he sought because the Obama administration arrogantly claimed nigh-limitless power to kill anyone, anywhere, at the president’s whim. There is no reason to believe the president actually intends to abuse such power — he has not done so to this point and, as National Review’s Editors point out, “the day an administration starts killing Americans with drones at cafés — to borrow one of Rand Paul’s hypotheticals — is the day impeachment proceedings begin.” So, assuming the administration is simply trying to protect the president’s institutional turf, it has made the error of conflating the theoretically limitless power the Constitution could potentially vest in the president if a threat were dire enough with the finite authorization Congress has actually given the president for the use of force in this conflict.

Senators Paul and Cruz have suggested that the constitutional claim they’ve posited — viz., presidents are not empowered to kill Americans on American soil absent an imminent threat of violence — is “easy,” “clear,” and “obvious.” I respectfully disagree. It is none of those things. What is easy, clear, and obvious is that if we do not need certain troublesome authorities to fight a war successfully, Congress can withhold them.

Why does it make a difference whether this curtailment comes from the AUMF rather than the Constitution? Because, absent a sudden-attack situation, the Constitution makes Congress the master of what force is lawfully authorized, while our tradition holds that the courts are masters of what the Constitution means.

Since 2004, courts have made themselves a part of the national-security equation to an unprecedented degree. When challenged to construe constitutional doctrines, they seek to impose logic. Senator Paul’s proposal of a Constitution-based no-lethal-force exception to the principle that an American who joins the enemy may be treated like the enemy is not logical.

To iron out the inconsistencies, the courts may well conclude that if Americans are not to be treated as enemy combatants for purposes of lethal force, they should not be treated as enemy combatants for purposes of capture, detention, interrogation, and military war-crimes trials. Furthermore, if they follow the trajectory of the Supreme Court’s 2008 Boumediene decision, courts may well conclude that any core constitutional protections extended to American citizens must also be extended to alien enemy combatants. That would be the end of the law-of-war approach to counterterrorism.

Is that Senator Paul’s objective? I do not know. Many of his libertarian supporters would welcome it. Most Americans would disagree, recognizing that the war paradigm has been instrumental in preventing a reprise of 9/11.

I do know this: If all the senator really has in mind is some curtailment of presidential overreach, the right way to do that is to limit the AUMF. If his ambition is greater, if he believes the country would be better off ending the war paradigm and returning to peacetime due process, the forthright way to do that is to repeal the AUMF. That would be a terrible mistake, but one we could withstand, however painfully. What we might not be able to withstand is the shackling of constitutional powers we may someday need to sustain the United States.

 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.