What emerges instead, at least in theory, is an unbound, unreviewable license to kill any American the commander-in-chief, acting through some unspecified subordinate, decides is dangerous.
Let’s try to be more concrete about it by considering a hypothetical based on the Libya war. Obama launched that war unilaterally: There was no congressional authorization, no threat of attack against the United States, and no vital American interest imperiled. Let’s say the president or, even worse, some unidentified subordinate decided some American mercenary in, say, northern Chad (a non-battlefield) was training non-uniformed forces to conduct covert operations in support of Qaddafi. The administration appears to take the position that the president or his mysterious subordinate could legitimately dispatch a drone to kill that American citizen.
This is plain wrong. That the Constitution, as construed by the Supreme Court, abides the wartime killing of American enemy combatants is not a bright green light. It is a reluctant allowance, a grudging resolution of a very close question. The Constitution remains, primarily, every American citizen’s protection against federal-government abuse. Foreign enemies threaten all Americans, and thus wide latitude must be granted to the governmental forces charged with defeating them. If this ends up meaning a citizen’s right to life must be denied because he threatens other American lives, the killing must be done consistent with the Constitution’s requirements. In the absence of an attack or imminent attack, that means there must be a congressional authorization. Consulting with the Security Council or the Arab League will not do.
The ongoing war against al-Qaeda and its affiliates is legitimate under the Authorization of the Use of Military Force passed by Congress in the aftermath of 9/11. But the 2001 AUMF is not the showstopper it is portrayed to be by the white paper, by administration supporters, and by the national-security Right. As I’ve argued before (see, e.g., here), it is badly in need of updating.
To be sure, the AUMF is sweeping in terms of allowing the president to target “nations, organizations or persons” without any geographical limitations — Anwar al-Awlaki in Yemen and Jose Padilla in Chicago were no less eligible for enemy-combatant treatment than Yasser Hamdi in Afghanistan. Yet the AUMF is narrower than commonly thought, and surely narrower than the Obama white paper intimates. That is because, to qualify as enemy combatants, the AUMF requires that these nations, organizations, or persons must either have been complicit in the 9/11 attacks or have harbored those who were complicit.
September 11, 2001, was a dozen years ago. Many jihadists who now threaten us did not join al-Qaeda and its affiliates until years after the attacks. In fact, some affiliates, such as the Pakistani Taliban, did not even exist on 9/11. To be sure, the AUMF went on to say that the reason Congress was authorizing combat operations was “to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” But that clause did not unmoor what is otherwise the AUMF’s literal grounding in 9/11. Certainly, the fuzzy “future attacks” language is a thin reed on which to rest the use of lethal force against Americans — or anyone else — who had nothing to do with the 9/11 attacks, even if they are jihadist savages. I doubt many Republicans would have much use for judges who construed the Constitution with the same organic grandeur that colors the standard Republican reading of the AUMF.
This brings us, finally, to the last big-picture point: There is abundant opportunity in Obama’s hypocrisy. For a dozen years, we have engaged in heated debates about Bush counterterrorism practices. After four years of watching Obama enthusiastically adopt what he once condemned, we now know Bush detractors were animated by politics, not conviction. We now know that, across a broad spectrum of Obama progressives and national-security conservatives, there is consensus about an aggressive counterterrorism model.
Though neither the civilian nor the military justice system is a comfortable fit for modern international terrorism, we have wasted years slamming the square peg into these round holes. Instead, we should have been designing a new, hybrid legal framework for the modern realities of international terrorism: the need to detain jihadists who cannot be tried under civilian due-process standards; the need effectively to interrogate jihadist prisoners to whom Geneva Convention protections for honorable combatants do not apply; the need to conduct searching, rapid-fire cross-border surveillance; the need to capture and sometimes kill enemy operatives who lurk in the shadows, far from traditional battlefields — some of whom will inevitably be American citizens; the need to revise the AUMF to reflect the current state of the war and remove uncertainty — or illegitimacy — in the determination of who qualifies as an enemy combatant.
For many years, I have argued that we need a new national-security court to deal with the unique legal challenges of a war against transnational terrorists. If anything, the need is more urgent now than ever. No matter what the future of counterterrorism is, though, there needs to be congressional buy-in. President Bush could never deliver that: Democrats were too determined to smear for political purposes the strategies they abruptly embraced once they were accountable for the nation’s security. But President Obama could do it — he could deliver plenty of Democrats. Together with the strong Republican support that is guaranteed, we could very quickly have an enduring, constitutionally sound counterterrorism framework. We could craft legislation that provides broad executive discretion but avoids the dangerous excesses of the Justice Department white paper.
All President Obama has to do is lead. All he has to have, in dealing publicly with his anti-war, anti-anti-terrorist base, is the courage of the convictions he and his attorney general manage to summon up for secret white papers.