If a plane full of 200 American citizens is hijacked by foreign jihadists, the law does not tell us whether the president should shoot down the plane or let it be plowed into a skyscraper and kill 3,000 American citizens. It is the kind of excruciating decision that war makes necessary. Legal niceties do not tell us how to resolve it.
That is the problem with our debate over the treatment of U.S. nationals who join the enemy’s forces in wartime — most urgently, over the targeted killing of our fellow citizens. We want the legal answer. But the legal answer is not going to help us. Under the Constitution, Americans who join the enemy may lawfully be treated like the enemy, which includes being attacked with lethal force. That, however, tells us only the outer limits of what is permissible. It does not tell us what we need to know: What should we do?
The government’s war powers must be boundless, at least in theory. We must be able to marshal all our might to repel any conceivable existential threat. Yet the Constitution, the sole legitimate source of the government’s power to levy war, is, quintessentially, the citizen’s protection against aggression by that same government. Thus, the tension between government’s war powers and the citizen’s fundamental rights is a conundrum. It simply cannot be resolved with finality.
#ad#Neither side of our debate is satisfied with that. We want fixed rules. But fixed rules work only if they answer every conceivable hypothetical. So the debate lurches inexorably to worst-case scenarios.
Hypothetically, the country could be invaded by a foreign power abetted by a fifth column of American traitors; for the nation to survive, our armed forces would have to conduct combat operations that quite intentionally involved killing Americans on our own soil. It is also true, though, that a corrupt or reckless administration could wildly abuse a congressional combat authorization, or abuse the president’s inherent, unilateral power to respond militarily to attacks or imminent attacks. So, yes, hypothetically, a wayward commander-in-chief could assassinate his political opponents on the pretext that they threatened national security.
Now, neither of these doomsday scenarios is close to our reality. Fortunately, very few of our fellow citizens collaborate in the jihadist plots of our wartime enemies. As a result, over the last dozen years, only a handful of Americans have been given enemy-combatant treatment.
Of these, only three have been killed in drone strikes. All three killings occurred in a lawless country, Yemen, notorious as a haven for anti-American jihadists. Under the circumstances, the three killings were justifiable. Operating under Congress’s sweeping 2001 AUMF (Authorization for Use of Military Force), it was reasonable for the executive to conclude that Anwar al-Awlaki was an al-Qaeda operative. The other two Americans — Awlaki’s companion, Samir Kahn, and 16-year-old son, Abdulrahman al-Awlaki — were in such propinquity to al-Qaeda operatives that their collateral deaths were, at worst, the fallout of proportional uses of force. (I say “at worst” because, while we are not privy to the intelligence, the circumstances suggest that the latter two may have been jihadists themselves.)
Over the years, three other American enemy combatants were confronted but not killed. John Walker Lindh and Yaser Hamdi were captured overseas and detained as enemy combatants. Lindh was given a civilian prosecution; Hamdi, after renouncing his citizenship, was transferred to Saudi Arabia. The third man, Jose Padilla, is the most instructive case for our present purposes.
#page#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.
#ad#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.
#page#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.
#ad#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.