There is a flaw at the very heart of Barack Obama’s presidency. In the 1960s and 1970s, Hollywood created a new type of film protagonist — the anti-hero. He played the leading role, but was the opposite of a hero. Barack Obama is becoming the anti-president: He is acting on a vision of his office directly at odds with the Framers’.
The recent leak of the Justice Department white paper on the targeted killing of Americans by drone warfare is the latest indication of the president’s failure to understand the constitutional purpose of his office. Some critics claim that the memo shows that the president is attempting to seize an unchecked, unilateral power to deprive citizens of their most fundamental right: the right to life. Some members of Congress have even unwisely proposed to rein in these attacks on Americans who have joined al-Qaeda, and to establish a special federal court to issue the functional equivalent of death warrants. (President Obama broadly endorsed this idea of judicializing military strikes in his State of the Union address. “I will continue to engage with Congress to ensure not only that our targeting, detention, and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world,” he declared.)
But the white paper on drone strikes is most important for what it reveals about Obama: his desire to weaken his own office’s ability to fulfill its constitutional duties. Eighteenth-century Americans understood the executive’s powers to focus on two main functions: the protection of national security and conduct of foreign relations, and the execution of the laws. “Energy in the Executive is a leading character in the definition of good government,” Alexander Hamilton wrote in Federalist 70. “It is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws.” Most important of all, commanders-in-chief — since the time of the Framing — traditionally have managed war. “Of all the cares or concerns of government,” Hamilton wrote in Federalist 74, “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”
Choosing enemy targets and selecting weapons systems thus fall squarely in the executive’s docket. Presidents have generally followed the laws of war, which require that militaries discriminate between civilians and combatants and use proportional force to achieve their missions. But now the administration has said, in a Justice Department white paper, that, for the first time in American history, White House advisers are choosing targets in war using criteria developed in the criminal-justice context: whether the enemy’s due-process rights allow the use of force, whether capture is feasible, and whether an attack on the United States is imminent.
Civil libertarians of the Left and the Right might find comfort in the fact that Obama and his advisers worry about terrorists’ rights before they authorize a drone strike. But they should concede that none of it — despite appearing in a Justice Department paper — is required by the law. Under the traditional laws of war, members of the enemy forces are legitimate targets at any time, unless they have surrendered or can no longer fight owing to injury. It does not matter whether they are generals or privates, or whether they are continually planning attacks or pose an “imminent” threat to the United States, as required by the Obama administration. In World War II, for example, the U.S. bombed military targets in Germany and Japan far behind the front lines; the only legal question was whether the U.S. could also bomb civilian targets to stop war production or weaken the enemy’s will to carry on. It does not even matter whether the enemy is American. In past wars — especially the Civil War, during which President Abraham Lincoln believed all Confederates remained U.S. citizens — some Americans have joined the enemy and have received the same treatment as their brothers-in-arms.
By introducing law-enforcement concerns such as imminence, capture, and due process into military decisions, President Obama weakens his office. These criminal-justice notions not only slow down the military decision-making process, but also invite the judicialization of war. Obama’s drone policy resembles the abortive September 10 terrorism policies he announced at the start of his first term. Soon after taking office, he ordered Guantanamo Bay shut down and terrorists transferred to a mainland prison. He halted military trials of terrorists and announced that al-Qaeda leaders such as Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, would be tried in federal courts in downtown New York City. His Justice Department read Miranda warnings to captured al-Qaeda operatives, such as Umar Abdulmutallab, who tried to blow up a Northwest airliner over Detroit on Christmas Day 2009.