As always, I thank Andy and David for their responses. Let me total up the scorecard:
1. According to Andy, the president can initiate military action at any place and at any time — including Canada and New Jersey, in his examples — and, even if such an action is illegitimate (within his power but beyond his authority, as Andy puts it), the question is “not justiciable,” because “we are a body politic, not a body legal.” So, if, for instance, the president should flout the Constitution by delegating Congress’s war-making power “to an international tribunal that lacks political accountability to the American people,” the main options are: 1. impeach him. 2. wait for an election. We may call ourselves a nation of laws, but if such questions are “not justiciable,” then the president is not bound in any meaningful way by law.
2. Also according to Andy, the military has absolute power to determine who is an enemy combatant in one of these campaigns the president has unlimited power to initiate. The law simply does not apply. Writes Andy:
The question of who is an “enemy combatant” is not a legal issue. It is, in the first instance, a battlefield determination to be made by our armed forces, and thereafter a political issue to be decided by the officials our system makes responsible for the authorization of military force and the conduct of war.
3. According to the standards set by the Obama administration, the things that can get one designated an enemy combatant — designated by the legally unimpeded military in the course of any campaign, legitimate or otherwise, the president has unjusticiable and legally unlimited power to initiate — include making speeches and publishing magazine articles. As VDH notes below, Awlaki was considered dangerous largely because of his linguistic ability and his social-media savvy.
4. Which adds up to: The president can order the death of Andrew C. McCarthy, David French, or Kevin D. Williamson for writing a magazine article, and if the American people don’t like that, they can wait until November 2012.
Awlaki was obviously in the camp (metaphorically and then literally) of our mortal enemies. If propagandizing on behalf of a mortal enemy were enough to justify the assassination of a U.S. citizen, then we would have shot half the faculty of Harvard and 93.8 percent of the Motion Picture Academy a few decades back. But this is wartime, the argument goes. So was Korea, Vietnam, and much of the second half of the 20th century, but we managed to get through it without ordering the assassination of I. F. Stone, and his beloved Soviets were a far greater threat to this nation than is al-Qaeda.
If the Authorization for Use of Military Force does indeed permit all this, then it is only a law legalizing lawlessness. Citizenship, as I have argued before, is my main concern here. If citizenship in a republic means anything, it means that raw political clout is not the only thing standing between the citizen and arbitrary violence on the part of the state. The extrajudicial killing of American citizens — not on a battlefield, mind you, and not in the course of combat — fundamentally changes the relationship between citizen and state. I have my doubts that any sensible person would have let himself freeze to death at Valley Forge to establish such a government.