The War on Terror has blinded the Right to a disturbing expansion of executive power
Here are two facts: 1. Anwar al-Awlaki is an American citizen and an al-Qaeda propagandist. 2. Pres. Barack Obama proposes to assassinate him. Between the first fact and the second falls the shadow.
The Awlaki case has led many conservatives into dangerous error, as has the War on Terror more generally. That conservatives are for the most part either offering mute consent or cheering as the Obama administration draws up a list of U.S. citizens to be assassinated suggests not only that have we gone awry in our thinking about national security, limitations on state power, and the role of the president in our republic, but also that we still do not understand all of the implications of our country’s confrontation with Islamic radicalism. The trauma of 9/11 has deposited far too much emotional residue upon our thinking, and the Awlaki case provides occasion for a necessary scouring.
Contra present conservative dogma, the Constitution has relatively little to say about the role of the president in matters of what we now call national security, which is not synonymous with combat operations. What the Constitution says is this: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” That is all. Upon this sandy foundation, conservative security and legal thinkers have constructed a fortress of a presidency that is nearly unlimited or actually unlimited in its power to define and pursue national-security objectives. But a commander-in-chief is not a freelance warlord, and his titular powers do not extend over everything that touches upon national security. The FBI’s counterterrorism work, for example, is critical to national security, but its management does not fall under the duties of a commander-in-chief; it is police work, like many of the needful things undertaken in the War on Terror. The law-enforcement approach to counterterrorism is much maligned in conservative circles where martial rhetoric is preferred, but the work of the DOJ, FBI, NYPD, etc., is critical. It is not, however, warfare.
A commander-in-chief does not have unilateral authority to invade foreign countries or to name belligerents, and it is clear that the Founders did not intend to give the president that kind of unchecked war-making power, much less to compound it with unchecked domestic police and surveillance powers, which is why the power to declare war resides with Congress rather than with the president. Our Constitution, as in all things, relies upon checks and balances when it comes to the conduct of war. It is significant that the final powers — to declare war, to ratify a peace treaty, to punish treason — do not rest with the president, but with Congress.
Congress deploys its checks and balances through passing laws, but many conservatives now argue that the president need not follow them. It is no exaggeration to write that a key plank in their platform is the belief that the law does not apply to the president or to his employees. Being a co-equal branch of government, conservatives argue, the executive is not bound by what my colleague Andrew C. McCarthy habitually refers to as mere “congressional statute” — i.e., the law — when pursuing its constitutional national-security duties. I do not wish to exaggerate Mr. McCarthy’s position, so I will let him speak for himself. For example, he acknowledges that “Bush’s ‘Terrorist Surveillance Program’ did not comply with the letter of a congressional statute, the 1978 Foreign Intelligence Surveillance Act,” but maintains that the administration was not obliged to follow the law in this case, because of a superseding constitutional investiture. Mr. McCarthy dismisses the notion that “the president acts illegally whenever he transgresses a statute” and argues that Congress “violated constitutional separation-of-powers principles” merely by issuing subpoenas to White House staffers in the course of a criminal investigation. He argues that in national-security matters, the president’s conduct is “more a political matter than a legal one.” For a great many conservatives, President Nixon’s most cracked assertion — “When the president does it, that means it is not illegal” — is now an article of faith, but President Reagan’s Executive Order 12333 banning assassinations is a dead letter.
Running with the ball we passed him, Obama and his administration now insist on the president’s right not only to order the assassination of U.S. citizens, but to do so in secret, without oversight from Congress, the public, or anybody else. Barack Obama today claims powers that would have made Julius Caesar blush.
An assassination may have military consequences, but it is not mainly a military act — war and assassination are different and distinct branches of politics. That does not mean that the law does not come into play: Mr. McCarthy may believe the president can set aside mere statutes, but he frequently justifies our detentions of al-Qaeda suspects as necessary prophylactics against “war criminals,” and the legal contortions that have been used to justify what we’re still calling with mostly straight faces the “enhanced interrogation” program have been a thing of wonder to meditate upon. The necessary thing to remember, these conservatives insist, is that since 9/11 the nation has been at war. In truth, we’ve been inching our way toward carrying out assassinations since well before the terrorist attacks of 2001. Clinton-administration officials told the Washington Post in 1998 that targeting Saddam Hussein was one possible contingency in case of hostilities with Iraq. Killing a hostile head of state as a prelude to combat operations is probably defensible; the slippery slope to assassinating American citizens was lubricated by the grief and rage of 9/11. There was remarkably little discussion given to it, the War on Terror having brought out the destructive strains of American exceptionalism. It is impossible to imagine that the United States would accept that the King of Sweden or the Grand Duke of Luxembourg has the legitimate right to conduct assassinations in the United States on the theory that we might be harboring enemies who wish them ill; to say the words is to appreciate their inherent preposterousness. But our own president is empowered to target our own citizens, wherever they may be found, without even so much as congressional oversight.
Among other intolerable consequences, this line of thinking means that if the president starts assassinating U.S. citizens helter-skelter, then the law is powerless to stop him, Congress is powerless to stop him (short of impeachment), and we’ll just have to wait for the next election. That is what is meant by “political limits” on executive power, as opposed to legal limits. It is an inadequate control.
These beliefs are relatively new to conservatives, being for the most part an artifact of the Bush years. One needn’t roll the clock back very far to discover a time when conservatives took a starkly different view of executive powers. After the fiasco at the Branch Davidian cult compound near Waco, Texas, the Right not only was willing to see executive-branch personnel subjected to the indignity of answering a subpoena but was in fact insistent that “mere statute” be used to put some of them in prison. Elliott Abrams, writing in National Review, called for investigations, arguing that “the balance between energetic law enforcement and limits on excessive government power will not be maintained if the Justice Department does not seek vigorously to maintain it.” On National Review Online, Deroy Murdock lamented the “maddening culture of impunity in which few officials face serious consequences for violating the law. This double standard, in which federal badges become licenses for lawlessness, typified the Clinton-Reno years.” He added that federal actions “involved an unlawfully extreme indifference to human life. Such misconduct often yields second-degree murder charges. But not at Waco.” Or for the would-be assassins of Awlaki. The Clinton administration was enough to make a limited-executive man, at least for a little while, out of John Ashcroft, who wrote: “The Clinton administration’s paranoid and prurient interest in international e-mail is a wholly unhealthy precedent, especially given this administration’s track record on FBI files and IRS snooping. Every medium by which people communicate can be subject to exploitation by those with illegal or immoral intentions. Nevertheless, this is no reason to hand Big Brother the keys to unlock our e-mail diaries, open our ATM records, read our medical records, or translate our international communications.” John Ashcroft felt differently after 9/11, as we all did. But John Ashcroft’s feelings are not what govern the United States.
The evolution of conservatives’ attitudes toward unchecked executive power is cautionary: If some of us who have historically been skeptical of the state and its pretenses are so quickly seduced by the outside observation of absolute power, how much more alluring must the prospect prove to the men who actually employ that power? Conservatives ought to admit that the presence of one of our own in the White House made us much more amenable to executive arrogations, and that the antiwar movement that tormented the Bush administration brings out a kind of Pavlovian response in us: Whichever side of the barricades the placard-carrying hippies and ANSWER dirtbags are on, we want to be on the other. That’s a salubrious instinct, but it can distort our thinking, inasmuch as the civil libertarians are not always wrong about everything. And we should appreciate that the Obama administration has intentionally made this matter public, leaking the details to the Washington Post: This is not a covert operation, but the establishment of a precedent. It is time to restore our ancestral suspicion of executive power.
But we have failed to do so, and now we are enduring the consequences as the Obama administration draws up a list of American citizens to be targeted for premeditated, extrajudicial killing that is part of no conventional military campaign, which brings us to two destructive illusions that must be shed: First, the War on Terror is not a war — not in the conventional sense of that word. Like the War on Drugs (but infinitely more serious and more important), it is a metaphorical war that sometimes has the characteristics of a real war. Awlaki is not a soldier or a man at arms: He is an author of invective and a preacher of sermons — it was not until the administration had been castigated for its assassination plans that it retroactively promoted the hateful homilist to “commander.” His crimes are real, and there is precedent for punishing them — we hanged Der Stürmer editor Julius Streicher at Nuremberg, but felt the need to conduct a trial first: Even a Nazi got more due process than we today are willing to extend to U.S. citizens. Awlaki is a traitor, to be sure, but hanging American traitors is a job for the American federal courts, not for assassins.
Second, and equally important: We are not going to win. Neither is al-Qaeda. Here, Mr. McCarthy is dead on: “There will be no treaty, no terms of surrender, no conquering enemy territory. Instead, there is only vigilance.” The War on Terror is not a military campaign, but a risk-mitigation project — a dangerous, bloody, and often thankless one. Jihad is and will be a constant low-level menace that may from time to time produce a spectacular attack. Al-Qaeda and its sympathizers will try to kill Americans, and we will try to stop them. If Awlaki happens to find himself on the wrong side of an American munition during the course of combat, he will not be missed.
But combat is a different thing from assassination, and regular combat is increasingly rare in the War on Terror, now that the actual war part — in Iraq and Afghanistan — has mostly wrapped up. And that is why the war model, and all of the lawlessness that flows from it, is defective: When the war is a metaphor, the battlefield is everywhere, and the timeline of operations is history’s horizon, we invite the creation of a state of “permanent emergency” by acquiescing to the growth and glorification of the state in arms. The defect in our pre-9/11 antiterrorism program was not that it was based on a law-enforcement model or that it lacked sufficient martial vigor, but that it was incompetently executed, a low-level, back-burner priority for a fat and happy nation cruising toward the millennium with very little on its mind beyond investment returns and Bill Clinton’s sexual shenanigans. That much changed on 9/11, but this did not: Decent governments do not assassinate their own citizens.