Magazine | April 8, 2013, Issue

The Check Is Politics

Congress can limit drone strikes, but the Constitution does not

Stipulation is a notorious stratagem of trial lawyers. You tactically stipulate that the strongest part of your adversary’s case is true in order to take discussion of it off the table. Then you fight the case on the ground where you are strong, and fight it so aggressively that maybe the jury won’t notice that you’ve already conceded everything that matters.

It works in politics, too. Senator Rand Paul has pulled it off in the debate over using lethal military force against American citizens. The question is whether the Constitution permits the president to kill, on American soil, an American citizen who is believed to be an enemy combatant yet is not an imminent threat. The answer is so obviously “Yes” that Senator Paul — arguing the illogical and ahistorical but politically popular “No” side — is reduced to stipulating.

So Paul thunders “No,” and sears into popular consciousness the image — as powerful as it is nonexistent in our post-9/11 experience — of an innocent American citizen, suspected on the skimpiest of intelligence to be vaguely sympathetic to terrorists, sipping cappuccino in a café on Main Street, U.S.A., when suddenly, terrifyingly, he is blown away by a missile fired from that most apparently omnipotent of all military weapons, the drone. As Paul sounds the alarm, though, he is careful, sotto voce, to qualify: Of course I’m not talking about an American citizen who has taken up arms against his country, and of course I’m not talking about a battlefield situation, and of course I’m not talking about times when there is an attack under way or, heaven forbid, a bomb is about to go off.

Convenient, isn’t it? An American citizen may not be targeted . . . except when he may be. But to put it this way — to acknowledge the commander-in-chief’s wartime power to defeat the enemy and quell attacks against the United States — would effectively concede that the Paul crusade, including the senator’s bravura 13-hour filibuster, is mostly theater.

Theater can be good or bad. Paul’s campaign against imaginary drone strikes by our military against our citizens is a little of both.

Writing for a unanimous Supreme Court in Moyer v. Peabody (1909), Justice Oliver Wendell Holmes Jr. observed that, when the life of the state is at stake, executive processes trump judicial processes. War naturally inflates executive power. Domestically, the War on Terror has resulted in no actual or realistically threatened use of lethal U.S. military force in our homeland — against anyone, much less Americans. Still, it has intruded on liberty in a variety of ways, from more intrusive air-travel inspections to reduced access to public buildings to interference with private commercial activity. As the mass murder of nearly 3,000 of our fellow citizens fades further into memory, these infringements seem driven more by official arrogance than by sensible security.

Senator Paul is thus using a highly unlikely possibility to spotlight a danger that is only too real. Shrewdly, he exploits the fact that, though the laws of war are fixed and expand executive authority in settled ways (including heightened power to kill or capture enemy combatants, conduct surveillance, and police financial transactions), war itself is infinitely variable. If the ongoing war featured fifth columns of American citizens joining constant invasions by a foreign power or insurgent uprisings, there would be nothing to debate. In the Revolutionary War, the War of 1812, the Civil War, and, to a lesser extent, the Second World War, American commanders and presidents used military justice and lethal force against Americans. With the national-security danger manifestly real rather than theoretical, there was little public protest.

The more merely technical the war — the more theoretical the threat it defends against — the less inclined the public is to abide unbridled war power. For good reason: In wars during which there was no serious threat to the homeland — think World War I or Vietnam — we have witnessed some of our history’s worst civil-liberties abuses: speech suppression, oppressive sedition prosecutions, domestic spying, etc.

The so-called War on Terror may be the worst of all worlds. The threat of mass-murder attacks is not just real but demonstrated. Yet the enemy is an elusive, non-state terror network, which explains why we have operated under a sweeping authorization rather than a declaration of war. Some academics argue that “war” may not be waged against a sub-sovereign gang, and therefore that the threat terrorism poses is properly a law-enforcement matter. Such episodes as the Marines’ battling Barbary pirates on the shores of Tripoli refute this theory; but it cannot be gainsaid that our current “asymmetric” war suggests no traditional war-end scenario — no clear conquest, no armistice. In this war, then, the natural metastasis of executive power does not seem temporary. The erosion of liberty could be permanent.

#page#So Senator Paul’s exertions have drawn needed attention to a real problem, even if that problem is not the drone kills of his imagination. But Paul is championing not a tonic for overreach in the ongoing conflict but a reduction of the constitutional powers of the presidency — powers that may someday be necessary to defend the nation from a more formidable threat.

There are two sources of executive power to use lethal force in wartime. Paul does not specify which one he is talking about.

First, in the case of an invasion, attack, or imminent strike against the United States, a president may use whatever force is necessary to suppress the threat. He does not need authorization from Congress, but there must actually be, at minimum, an imminent threat. If this were the only war-power context, Senator Paul would be correct: A president could not legitimately use lethal force against the American in his café example. Paul was quite right, moreover, to object to the Obama Justice Department’s assassination guidelines: Their elastic definition of “imminent” would render the president’s unilateral war power unlimited.

There can be a second source of the president’s power to use lethal force, though: a legislative authorization based on the war powers the Constitution vests in Congress, such as a declaration of war or the current Authorization for Use of Military Force. Lawmakers may not direct the manner in which war is fought, a prerogative the Constitution assigns to the commander-in-chief. But Congress may authorize combat operations, define the enemy, limit or suspend warfare, and enact laws that bolster American constitutional protections unnecessarily imperiled by wartime exigencies. If Congress has authorized the president to use force against an identified enemy, then enemy combatants — including American citizens who collude with the enemy — may be attacked with lethal force, captured and detained without trial, tried by military commission, and executed without judicial process. So it was that FDR, with the unanimous approval of the Supreme Court, executed Herbert Hans Haupt, an American citizen and Nazi saboteur, in 1942.

The Constitution’s tolerance of such measures does not suspend rational decision-making: To permit the use of lethal force is not to require it or to suggest that it is the best tactic in a given situation. The Constitution governs all conceivable conflicts — not just the present one, but any that could be far more perilous or even present an existential threat. Within its broad outlines, the main check on wartime presidents is politics, guided by careful attention to the exigencies at hand.

Al-Qaeda dispatched José Padilla, an American citizen, to the U.S. to conduct a second wave of attacks after 9/11. Congress had authorized military force against such operatives. So, could Padilla — an enemy combatant, but one whose plan was nowhere close to fruition — have been killed as he came off the plane in Chicago? The Constitution would have permitted this: The use of force has never been limited to traditional battlefields. But practically speaking, such a situation would never have arisen. Though we were at war and had even been heinously attacked, domestic conditions by then more closely resembled those in peacetime. Civilian police agencies were easily able to apprehend Padilla. Guided by the circumstances of the conflict, the president took him into custody, designated him an enemy combatant, detained him, and turned him over years later to the civilian courts — which, in upholding his eventual terrorism conviction, rejected his claim that enemy-combatant treatment violated his constitutional rights.

The War on Terror is not simply a matter of the president’s power to quell imminent attacks. Congress has broadly authorized the use of force — to defeat the enemy even if it is not actively attacking us. If Congress is worried about Senator Paul’s innocent American in the café, the solution is simple: Amend the Authorization for Use of Military Force to ban the domestic use of lethal force, even against enemy combatants, in the absence of an ongoing or imminent attack. It is easy to imagine (or recall) conflicts in which such uses of force would be necessary. After twelve years, though, we can safely say this is not one.

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