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War-Power Paranoia

by Andrew C. McCarthy

The War on Terror has not brought with it a disturbing expansion of executive power, or any expansion at all

Zero. If you’re keeping score, that would be the number of American citizens assassinated so far by President Obama. Oddly enough, it turns out to be the same number of our countrymen killed by President Bush. It was during the latter’s administration that, according to National Review’s Kevin D. Williamson, we conservatives began falling into “dangerous error” in the indulgence of executive power. In Mr. Williamson’s telling, this wayward path has led to our “mute consent” in — and outright “cheering” of — President Obama’s reported authorization of the assassination of Anwar al-Awlaki, an American citizen and al-Qaeda terrorist.

But wait a second, it’s not just an authorization. In “Assassin-in-Chief” (Nov. 1, 2010), as well as in several similar treatments of this topic on NRO’s blog, the Corner, Mr. Williamson informs us that the president even has an assassination “plan” — and not just for Awlaki. Picking up steam, he further inflates the wartime authorization of the killing of a single jihadist — one tied to multiple terrorist plots, including the 9/11 attacks — into an assassination list. By the time he’s done, there’s no telling how many of us the capo di tutti capi–in–chief is fixing to rub out.

To be clear, I’m a Kevin Williamson fan. That is why I am perplexed by his hyperbole, a sort of “Conservatives Gone Wild” in which I am cast in the starring role. At Exchequer, the NRO blog where he consistently delivers stellar analysis of the nation’s woebegone fisc, Mr. Williamson is admirably quick to point out that he is an English major, not an economist. Would that such pangs of humility caused him to think twice before trying his hand at constitutional law.

To begin with, the entire premise of his essay — the contention that the ongoing war has produced “a disturbing expansion of executive power” — is wrong. There has not been any expansion. The Bush years actually ushered in unprecedented restrictions on the commander-in-chief’s discretion to deal as he sees fit with enemy combatants — including Americans.

In June 1942, the Führer dispatched teams of saboteurs to conduct a terrorist campaign on U.S. soil. One was a 22-year-old American citizen named Herbert Hans Haupt. The Nazi infiltrators were arrested by the FBI, but Pres. Franklin D. Roosevelt directed that they be detained as enemy combatants, tried by military commission, and put to death — i.e., the executive branch acted as judge, jury, and executioner. Haupt duly met his demise, along with five others, in the District of Columbia’s electric chair about seven weeks after they were captured. Because the nation was at war with the Nazis, the fact that Haupt was an American citizen made no difference — he was treated just as his confederates were.

Mr. Williamson mentions neither Haupt nor the further inconvenience that a unanimous Supreme Court, in Ex Parte Quirin, declined to interfere in the commander-in-chief’s decision to have an American citizen killed. To the Supreme Court, decades before there was a Bush administration, it was immaterial even that Haupt had been apprehended inside the United States, far from any traditional battlefield, at a time when the civilian courts were open and functioning.

Looking at his pocket Constitution and apparently little else, Mr. Williamson divines a “sandy foundation” on which the president’s sparse and nebulous national-security authority stands — just commander-in-chief of the armed forces, “that is all.” On the other hand, the World War II–era Supreme Court, steeped in centuries of Anglo-American jurisprudence, grasped two rudimentary points that elude Mr. Williamson.

First, that same Constitution assigns exactly no national-security authority to the federal judiciary — the branch of government Mr. Williamson would put in charge of American enemy combatants. As the Court explained in the 1948 Chicago & Southern Air Lines case, “the Judiciary has neither aptitude, facilities nor responsibility” for national-security decisions. In our system, these matters are instead the province of officials “directly responsible to the people whose welfare they advance or imperil.” They are political in nature, not legal. Thus, in the 1950 Eisentrager case, the Court turned away enemy combatants seeking its intervention during post-war occupation. To grant them judicial review or civilian trials would, the justices said, “hamper the war effort and bring aid and comfort to the enemy.” “It would be difficult,” they elaborated, “to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home.”

Second, “commander-in-chief” is not the sum total of the Constitution’s presidential endowment. The president is also made sole repository of government’s “executive power.” This, as no less a states’-rights partisan than Thomas Jefferson acknowledged, was a conferral of plenary power over foreign affairs. Moreover, “commander-in-chief” is not, as Mr. Williamson suggests, an honorific that implies only “titular” power. The Supreme Court construed it in 1850 to empower the president to “employ [the armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy.” During the Civil War, it held that even in the absence of congressional authorization, the commander-in-chief was not merely authorized but obliged to repel attacks against the U.S. by any necessary force.

The president’s national-security powers are intended to be daunting. The lack of an executive capable of swiftly and decisively protecting the nation from foreign attack was a principal failing of the Articles of Confederation, and thus a catalyst for adopting a constitution that created a powerful president. Still, presidential authority is not without severe limits. I don’t disagree with Mr. Williamson on that proposition. Consequently, to carry his case along, he must caricature the arguments of national-security conservatives — while risibly asserting, “I do not wish to exaggerate Mr. McCarthy’s position.”

Mr. Williamson reports, for example, that I believe the president is not required to comply with congressional statutes. That’s silly. The president must comply with all statutes that do not infringe on his inherent Article II powers — and most don’t. But notwithstanding Mr. Williamson’s exaltation of statutes as “the law” — as in all of it — they are only a species of law. Of course, as they reflect the will of the people expressed through their representatives, statutes are an especially significant component of our law. But just like judicial rulings, treaties, and administrative regulations, they are subordinate to the Constitution. That is why I describe them as “mere” — to Mr. Williamson’s bemusement — only when comparing them with the superior provisions of the Constitution.

The subordinate status of statutes is why the Supreme Court has been invalidating them for over two centuries when they run afoul of constitutional limits. And like the judiciary, presidents decline to enforce statutes they believe to be invalid. President Bush did not invent this practice. It has been going on for as long as constitutional governance. It is what the Framers intended. They were worried, as Hamilton put it in Federalist 73, about “the propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments.”

So yes, I did contend, as Mr. Williamson points out, that President Bush’s Terrorist Surveillance Program — a wartime effort to intercept cross-border enemy communications — did not go beyond the executive branch’s lawful powers, even though it violated Congress’s 1978 Foreign Intelligence Surveillance Act (FISA). Unmentioned by Mr. Williamson is that my argument tracks the holding of the specialized appeals court Congress created to rule on surveillance issues: “We take for granted that the President does have that authority [to conduct warrantless surveillance for foreign intelligence purposes] and, assuming that is so, FISA could not encroach on the President’s constitutional power.”

National-security conservatives do not contend that Congress is powerless to conduct oversight of the executive-branch agencies it has created, or that those agencies may ignore its subpoenas. In claiming otherwise, Mr. Williamson seems not to perceive the difference between executive agencies (which routinely provide voluminous documents and testimony in response to congressional demands) and the White House staff (i.e., the president’s personal advisers). It is the latter that Congress must refrain from subpoenaing — just as it should not subpoena the president himself, or a federal judge, or that judge’s clerks. That’s Separation of Powers 101.

Mr. Williamson talks about Congress’s war power, but he doesn’t appear to understand it. It is the power to “declare” war — which the Framers settled on after rejecting language that would have empowered Congress to “make” war, and does not prevent the president from committing troops or conducting hostilities as he sees fit. And he completely ignores Congress’s control of the purse, which the Framers saw as its primary check on presidential authority. In point of fact, if it chose to do so, Congress could today defund combat operations, including any concomitant authority in the executive to order assassinations of enemy combatants. That would stop such assassinations (if they had actually started). Mr. Williamson also grossly underestimates another congressional check, impeachment. In his imagining, the Congress that impeached a popular president for obstructing an investigation into his sexual improprieties would somehow stay its hand against a president who was using war as a pretext to murder American citizens.

It would be hard to overstate how divorced this is from reality. Though a stickler for statutory law, Mr. Williamson seems not to notice that the War on Terror — which he belittles as “metaphorical” — is a real war in the statutory sense. Combat operations ensued only because Congress passed a sweeping authorization for the president to use military force against al-Qaeda, its operatives, and its affiliates. Legislative appropriations have reaffirmed the Authorization for Use of Military Force (AUMF) for nine years. Congress is free to repeal the AUMF — it would probably have to override a presidential veto to do so, but if Mr. Williamson’s assassination-list nightmare were a reality, the numbers for that would be there. Were Congress to repeal the AUMF, the president would have no authorization to kill anyone — American or otherwise — unless it were done in response to an attack or imminent threat against the United States (or, perhaps, in a covert operation against a dire foreign threat, carried out as prescribed in the relevant statute).

Could a president abuse his powers? Of course. All power can be abused — including legislative and judicial power. But the basic check against that possibility is political, not legal. Mr. Williamson implausibly argues that “political limits” are inadequate against the president and must be supplemented by “legal limits.” Courts, however, have no power to enforce their injunctions — for that, they must rely on the executive branch, and an executive branch that maintains a list of citizens it plans to assassinate will be unlikely to enforce injunctions against itself. By contrast, a president who really did the horrific things Mr. Williamson imagines President Obama doing would find his war authorization rescinded, his military and intelligence services defunded, and himself impeached. A president guilty of less heinous excesses might not be impeached, but he would find his popular support dramatically eroded. As Mr. Obama is finding, that has political consequences — among them electoral ones — that curtail the presidential capacity for malfeasance. This is the genius of the system.

Ironically, the sort of improvident legal limits Mr. Williamson urges are likely responsible for the assassination authorization he condemns. To understand why, consider Anwar al-Awlaki. Mr. Williamson limns him as a mere “preacher” and “author of invective.” Yet, to the intelligence community, which just might have better information, he is an al-Qaeda recruiter who, while in the U.S., encouraged 9/11 hijackers and Fort Hood terrorist Nidal Hasan; and who, once holed up in al-Qaeda’s safe haven in Yemen, went “operational” and guided Umar Farouk Abdulmutallab’s attempted Christmas Day bombing of a plane over Detroit.

That is more than enough to consider him an enemy combatant. Yet, hamstrung by federal courts and international tribunals, our overlawyered military and intelligence services are paralyzed by any perception of potential legal liability. Given that Awlaki is an American citizen, they doubtless fear taking action against him without the cover of a presidential authorization. And given the political heat President Clinton took for failing to give the CIA clear orders to assassinate bin Laden when the agency had opportunities to do so, it was plainly in President Obama’s interest to provide a clear authorization in Awlaki’s case. Otherwise, after the next 9/11, he could find himself in the Clinton hot seat, unable to explain why the military shrank from firing a cruise missile at a high-level al-Qaeda confab just because Awlaki happened to be in the room.

That’s all the assassination authorization for Awlaki is: legal cover if circumstances arise under which killing him is the best military option. And here we arrive at the central absurdity in Mr. Williamson’s argument. Though minimizing him, Mr. Williamson concedes Awlaki is a bad actor and has no objection to his being killed on the battlefield. Since Mr. Williamson doesn’t see that as problematic, he can’t fathom why our armed forces would want insurance — though it is they, not he, who would be hauled into court by Awlaki’s family. But the authorization to assassinate Awlaki does not mean the administration would have him killed if it encountered him coming off a plane in Chicago, à la José Padilla — a U.S. citizen captured, not killed, by the Bush administration. Nor does it mean our forces would kill Awlaki if they could apprehend him in a foreign country under circumstances in which detention was the more practical option, à la U.S. citizen Yaser Hamdi and al-Qaeda bigwig Khalid Sheikh Mohammed.

At the Corner, Mr. Williamson expressed astonishment that, as a severe Obama critic, I would give the administration the benefit of the doubt on this one. But I am an Obama critic only where the evidence warrants it. As Mr. Williamson observed, I accused the administration of a “grave violation of law” in civil-rights enforcement — but Justice Department lawyers have testified that Obama officials have imposed racially discriminatory charging practices. As Mr. Williamson noted, I’ve argued that the Obama administration shares much of the Islamist critique of the United States and has staffed the Justice Department with terrorist sympathizers — but there is a mountain of evidence to that effect. If Mr. Williamson has evidence for what he alleges — that President Obama has a list of Americans to be assassinated and is planning to carry out those killings — I’m all ears. But there is no evidence in his essay. Where I come from, a comparable lack of evidence gets your case laughed out of court.

There is no runaway executive branch, nor an “assassin-in-chief” drawing up hit lists of citizens. Usually, one encounters such hallucinatory analyses from feverish lefties or libertarian extremists, who hear in the most commonsense security measures a death knell for the Bill of Rights. In the real world, we have the most tightly regulated chief executive in our history — searchingly overseen by Congress and micromanaged by the courts in a manner that would have shocked the World War II–era judiciary, to say nothing of the Framers. Mr. Williamson should relax. The president has been successfully shackled.

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