The Corner

More Assassinating Awlaki

Kevin’s points are well taken — this is a very hard area. Let me just make three points, including one that bolsters Kevin’s position.

First, I think that “making speeches and writing articles” undersells what is known about Awlaki. Commanders-in-chief and military commanders make wartime decisions based on more than what is available in the press, and there is — I understand — lots of classified information about Awlaki, including stuff about his interaction with the 9/11 hijackers, Major Hassan, and Abdulmutallab. It’s fair to say that the vast majority of the time we don’t know (and never learn) the factual basis that leads the military and intelligence services to take action — sometimes lethal action — in wartime. I think if the totality of the case against Awlaki was what Kevin suggests, that would give everyone pause. But there’s a lot more to it.

Second, the proposition that the president is empowered to ignore congressional statutes that purport to inhibit his constitutional authority is not a controversial one. When Republican presidents ignore statutes enacted by Democrat-dominated congresses (e.g., FISA), it becomes controversial (even if Democrat presidents have ignored the same statutes). But the principle that presidential power cannot be reduced or repealed by statute is black-letter law and that has been relied on by every president (including the current one, every time he signs a mammoth bill containing this or that provision by which Congress seeks to usurp executive authority). Courts, furthermore, overrule Congress all the time because of what Hamilton aptly called “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments” — and, I’d add, to intude on the rights and absorb the powers of the states and the individual. I don’t know why people so easily accept judicial invalidation of congressional statutes but blanch when presidents ignore congressional statutes of dubious constitutionality. Anyhow, this tug-of-war between the president and Congress is to be expected because the Constitution does not firmly deliniate boundaries where one’s power ends and the other’s begins. Holmes said, “The great ordinances of the Constitution do not establish and divide fields of black and white.” It is to be expected that the political branches occasionally overreach and rein each other in.

Finally, very much in underscoring Kevin’s well-founded concerns is Justice Scalia’s extraordinary dissent in the 2004 Hamdi case, when the Court upheld the detention of an American citizen as an enemy combatant. Obviously, detaining someone without trial is different from killing him. But it raises many of the same troublesome problems. As I wrote about it here at the time:

Scalia flatly rejected the Bush administration’s depiction of an omnipotent wartime executive because, he found, it runs counter to the Constitution’s text, edified by common law tradition. In his view, Hamdi’s situation is precisely the one anticipatorily thwarted by the Suspension Clause’s preservation of the writ of habeas corpus: viz., an instance of the executive using the exigencies of a national crisis unilaterally to imprison an American on the unproven allegation that he is dangerous. Does that mean the Constitution leaves us unprotected, unable to neutralize American traitors and terrorists? Not at all: It is for just this contingency that the Framers included the suspension part of the Suspension Clause.

That provision permits Congress to suspend the writ of habeas corpus “in Cases of Rebellion or Invasion.” Therefore, if one rationally considered the 9/11 attacks an “invasion” to which the present war continues to respond, the political branches could … enact a limited suspension of the writ and close the courthouse doors to all these petitioners, perhaps periodically revisiting whether suspension remains necessary as the war proceeds. They have failed to do so, or at least to have taken responsible measures to address the fundamental liberty issues incontestably implicated by these cases….

The abstinence of the political branches here is a function of cold calculation. The president, having gotten a broad resolution back in September 2001, no doubt senses he’ll never get a better one, and that if he asked for a suspension of the writ now—with Iraq and the Patriot Act being pilloried—he’d lose, and that would do great harm to the war effort. Congress, on the other hand, may grasp that suspension would be the right thing to do, but the Democrats, especially in an election year, would never support it—it would make their antiwar base ballistic and would implicitly underscore the seriousness of the threat the president has made the centerpiece of his reelection campaign…. So they sit on their hands while the court is asked to do the heavy lifting (and then criticized for the way it does so). For Justice Scalia, the Constitution does not let them off the hook so easily. He sees two choices, both of which call for accountability and neither of which opens the door to judicial legislating: either have the political courage to suspend the writ or charge Hamdi criminally and prove the crimes in court.

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