The Corner

Re: Assassinating Awlaki

Kevin, I don’t think you’re being squishy, at all. But it is important to distinguish between how hard these issues are to resolve (they will often call for excruciating choices to be made) and how easy it is to assign responsibility for resolving them. The who here is straightforward, even if the what is fraught with difficulty.

When I say Obama’s decision was “obviously” correct, I am talking about the question from a constitutional standpoint. If we have American citizens who are fighting for the enemy in a war, some official of the government has to be responsible, in an ultimate way, for how we deal with that. In our system, that is the president. There can be no credible dispute about that. The Constitution makes the president the commander-in-chief, and thus the official responsible for the conduct of war. To the extent it was any of the courts’ business, the Supreme Court has held that there is no difference between American and alien enemy combatants — if they are fighting for the enemy, they can be treated as enemy combatants, meaning they can be killed or captured and detained outside the civilian justice system. The president is unquestionably the one to whom the Constitution entrusts this call.

I think it’s a good thing that you emphasize that your question is more moral and political than legal. The system the framers gave us was for a free, self-determining, adult people. It was not to be principally regulated by judicial processes. It was to be regulated by political processes, which is where the people’s moral sense best expresses itself.

All power can be abused, so reposing power in the courts is no more assurance that it won’t be abused than reposing it in the president. FWIW, I think the judicial power is far more likely to be abused because it is unaccountable. We can vote the president out of office if he oversteps his authority — and if he does it severely enough, he can be removed by impeachment. We can’t vote judges out of office and the possibility of impeaching them for poor judgment (as opposed to personal misconduct) is very remote. 

The examples you give of me frustrating DOJ and the reporter mishandling classified information are good ones for making this point. The category of person our government may lawfully kill or capture in wartime is “enemy combatant” (or “enemy belligerent,” the term Congress used in the last amendment of the Military Commissions Act, in 2009). To fit into this category, one would have to fall within Congress’s target in the 2001 Authorization of the Use of Military Force or within Congress’s subsequent definitions of enemy combatants. The AUMF authorizes force against “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The later statutes brand as an enemy combatant or belligerent (a) members of al Qaeda, (b) one who engages in hostilities against the U.S. or its coalition partners, and (c) one who purposefully and materially supports hostilities against the U.S. or its coalition partners (the last category is controversial). My carrying out lawful activities that have the effect of frustrating DOJ would clearly be outside these definitions. The reporter engaging in the illegal handling of classified information may violate several laws, and may thus be prosecuted, but does not become an enemy combatant or belligerent who may lawfully be killed.

While the president lacks the legal authority to kill me or the reporter, he does have the power to kill us. Indeed, he has that raw power regardless of whether there is a war or not. What stops him from taking such actions is his own moral sense (including his oath of office), his understanding of our moral sense (meaning, it would be a political catastrophe to take such an action), and the potential for impeachment. I suppose it’s also possible that he could be prosecuted for murder, but there are legal questions about whether that is so. I doubt, in any event, that possible prosecution would weigh much in a president’s calculations. The moral and political pressures more than suffice as operational constraints.

Consequently, I don’t worry as much as Kevin does that the targeted assassination authorization is a reckless precedent. In fact, Obama is not creating a precedent; he is following one. Quirin is the German saboteur case from 1942. One of the eight combatants was an American citizen and six of them were executed within seven weeks of capture (off the top of my head, I don’t remember whether the American was executed or was one of the two combatants who were given long jail sentences). Despite the Quirin precedent, we really didn’t have another controversial case involving an American enemy combatant for over half a century. At that point, President Bush used the power exactly twice, and both instances (Hamdi and Padilla) clearly involved al Qaeda members. President Obama is now resorting to it for someone who is also clearly a member of al Qaeda. So while it’s certainly possibly that this power could be abused in the outrageous way Kevin suggests, experience does not indicate that it will be.

Finally, let me push back a bit on Kevin’s fear that powers and precedents can be stretched way beyond what was originally intended — as he says, witness the commerce clause. While that’s undeniable, our experience in the national security area shows that this can and often does work in the opposite direction — sometimes catastrophically. FISA and the infamous Clinton-era “wall,” for example, were overreactions to the broad powers to conduct warrantless surveillance conferred on the president by both the Constitution and court precedents. That is, Congress (in FISA) and the executive branch itself (in DOJ’s wall regulations) quite intentionally attempted to limit the president’s national-security power such that it was less than what the Constitution confers. One result was that, when an FBI national security agent realized in August 2001 that two al Qaeda terrorists were in the country, headquarters refused to allow the FBI’s criminal division to assist in locating them, interpreting the wall to forbid this type of collaboration. On September 11, those two terrorists were part of the team that plowed Flight 77 into the Pentagon.

I think the moral of the story is that the framers intentionally reposed awesome powers in the presidency. They were wise men and they well knew that power could be abused, but they believed (rightly, I think) that we could check abuse by the separation of powers and by ensuring that the president is politically accountable. Equally important, the framers (unlike us, I’m afraid) understood that the United States and our liberties were not necessarily forever, and that we would occasionally have to fight for them. They thus created a presidency that could quickly and decisively marshal all the power the United States is capable of bringing to bear in order to defeat threats to our security. There is always the danger that a rogue can accede to this power. When that happens, the problem is the rogue, not the power.


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