Or Not Zero

by Andrew C. McCarthy

Kevin, I don’t remember the number of people who leapt to their deaths from the Twin Towers because that seemed better than death in the fires raging within, but I do know it was more than zero.

The threat of jihadists killing thousands of Americans remains very real. I am sympathetic to your veneration of the concept of citizenship, but there’s something abstract about it. I’ve convicted American citizen terrorists, and they were the scum of the earth. Most of the Americans I’ve otherwise known in connection with terrorism are those who’ve been maimed, been otherwise badly injured, or had loved ones killed. I don’t want our military killing Americans, but I don’t want terrorists killing Americans either, and the latter is a lot more common than the former.

If you think repealing the AUMF is the answer, then you are begging for another 9/11-scale attack. Even in the usual case, where there are no or very few Americans on hand in overseas training camps and hide-outs, there is no — I guess I should say, zero — authority to hit terrorist havens overseas with military force unless there is a congressional authorization of military force.

Some take the position that any one of those places is an imminent attack waiting to happen, and therefore the president does not need authorization. I don’t — I believe that by vesting Congress with the power to declare war, the framers meant to give Congress real power over the commitment of U.S. forces. Congress can restrict the president’s authority to use force by changing the AUMF. Even though I think it would be a mistake, I appreciate that some Americans think it is time to return to a peacetime criminal-justice paradigm, in which all terrorists, including enemy combatants, must be tried in civilian courts. But that is not the only result you’d get from scrapping the whole AUMF; in addition: (a) you’d have to release all detainees who cannot be tried (enemy combatants may only be detained indefinitely under the laws of war, and if there is no AUMF, then we are no longer under the laws of war), and (b) you’d have to cease military operations. A big part of what has kept the country safe from domestic attack for the last 12 years is the killing and capturing of high- and mid-level terrorists; their numbers can quickly be replaced but their training and experience cannot. To continue that part of our security strategy, you have to detain and you have to be able to strike terrorist havens. You need some kind of AUMF for that.

So no, I have never supported repealing the AUMF because I think it would be a reckless thing to do. As you know, I vigorously oppose the democracy project and the “hearts and minds” nonsense. But I strongly favor using our military and intelligence capabilities to kill and capture terrorists, and to interrogate them outside the criminal-justice system (I am not advocating “torture”; I am advocating being outside the Miranda rules). Unless you have an AUMF, you can’t do those things. Nevertheless, I have been urging for years that the AUMF needs to be amended. I think the enemy has to be better specified (which would give non-combatants more protection), and as you’ve argued, the definition of “enemy combatant” could stand some narrowing. I also think it would be sensible for Congress to curtail the authorization of force against Americans in the United States — while I don’t think there is much chance that the president will abuse his authority in this regard, some people obviously do, and you can’t have a successful security strategy unless there is political support for it.

#more#It would be a mistake to curtail the president’s authority when it comes to Americans outside the United States. Contrary to your suggestion, this has nothing to do with “the convenience of the authorities.” It has to do with the fact that Americans who voluntarily leave our homeland have no right to expect the protection of the Constitution in places where the Constitution does not govern. The rationale for treating American enemy combatants differently when they are confronted inside our territory is that we govern our territory and therefore it is reasonable to rely — in this conflict — on the police and other domestic law-enforcement/internal-security forces. We do not have that luxury overseas — that’s a matter of law, not convenience.

What’s more, it matters a great deal that Congress has authorized military force. Once the people’s representatives put the country at war, the national priority is to defeat our enemies — figuring what due process the enemy should get is a subordinate concern. An American who not only travels outside the United States but intentionally goes to lawless countries and remote locales that are sanctuaries for the enemy has no right to expect the protections of the Constitution and has no right to frustrate the nation’s war effort. If the rest of our citizens have, through Congress, authorized warfare against al-Qaeda, and we find Ayman al-Zawahiri (who only travels with those he trusts) in a safe house in Afghanistan, are we supposed to refrain from firing a missile at the safe house because one of the people in the room is an American citizen? Don’t the citizens in whose name Congress authorized war against mass murderers have a right to life too?

Further, if the AUMF were tightened up in a way that better specified who the enemy is and what one must do to qualify as an enemy combatant, that would be adequate protection for Americans overseas. I am not suggesting that this would eliminate the possibility of war powers being abused, but there is no way to eliminate that possibility.

As you’ve been good enough to note, I’ve also been advocating (for the last nine years) for the creation of a national-security court. Because neither the civilian nor the military justice system is a neat fit for the current conflict, the idea is to design a framework that provides a suitable quantum of due process (including judicial oversight) that permits detainees to challenge their designation as enemy combatants. Such a court could also handle war-crimes trials, surveillance issues, and other related matters. This, too, would reduce the power of the executive branch to make unilateral determinations about who the enemy is (authority the commander-in-chief was understood to have from 1787 until the 2004 Hamdi case), hopefully without doing material harm to intelligence collection, which is vital to counterterrorism.

In sum, I am not insensitive to the concerns you’re raising and that Senator Paul has been raising. They deserve careful consideration (which I’ve spent many years giving them). They may also deserve more action than I’ve thus far been persuaded is necessary. These are sometimes excruciatingly tough issues. But while I could be wrong about some of this, Kevin, so could you. With due (meaning great) respect, your side needs to be more realistic about the accommodations liberty has to make if we are going to have security. This is never an easy balance, even in peacetime or against a more traditional, predictable nation-state enemy. It is especially hard with an enemy that consistently defines barbarity down. (The late chief justice William Rehnquist’s useful book, All the Laws But One — Civil Liberties in Wartime, demonstrates that it is the history of our country to go overboard on security in wartime — in ways far more offensive to liberty than we’ve seen since 9/11 — but ultimately to improve civil rights in response.) 

One last thing. You’re right to say “It’s always zero, until it isn’t.” If someone had told me on September 10, 2001, that an American president might someday order the armed forces shoot down planes carrying hundreds of innocent American citizens, I’d probably have snarked that that had happened exactly zero times in the last 214 years. Before 9/11, I’m betting that Senator Paul could have given an impressive, passionate speech about the outrage of presidents claiming the authority to kill not suspected American terrorists but totally innocent Americans. And I can only imagine what a blithering idiot any attorney general would look like after a lawyer as gifted as Senator Cruz got through with him for equivocating over whether such a thing was unconstitutional. But then 9/11 happened, and President Bush and Vice President Cheney were faced with a stark, horrifying choice I doubt any of us had ever considered before: Do we shoot down a couple of hundred of innocent Americans if that’s what’s necessary to stop the plane they’re in from striking its target and killing several thousand Americans? The shoot-down order was given; thank God the attacks turned out to be over by then and the order never had to be carried out.

As I argued in the column today, Hamilton was right to say that potential threats to a nation are infinite and cannot be predicted with certainty. I don’t mean any arrogance or disrespect in maintaining we should not curtail the powers that might be necessary to repel them. Just the opposite. I am not nearly smart enough to know what we might have to do. No one has to convince me that President Obama abuses many of his powers, and that is a real worry. But those powers are in Obama’s hands only temporarily; they belong to the office of the president, and they are there because they may be necessary to protect or even save the country. If the occupant of the office is untrustworthy, you do your best to rein in the occupant, not the powers.  

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