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Roger’s Rules

Hypocrisy, Opportunity, and the War on America’s Enemies

February 11th, 2013 - 6:04 am

That is an extinct breed, alas, but the rest of us can savor the irony of the Justice Department relying on Clarence Thomas — Clarence Thomas! — to support their rational for snuffing out undesirable Americans. It’s pretty rich:

The Left used to point out gleefully that, in the critical 2004 Hamdi case, which reaffirmed that American-citizen enemy combatants may be detained without civilian due process, none of the other eight justices agreed with Thomas’s embrace of the Bush administration’s expansive take on executive war power. Now, Obama and Holder extensively quote Justice Thomas — as if the Left hadn’t spent eight years smearing him and Bush and every national-security conservative as a Constitution-shredding monster.

I think we’re all entitled to a good long chuckle at the rank hypocrisy involved. But when we stop laughing, other considerations should come to the fore. Some consideration, I believe, should be given to the icy political opportunism involved. The real behavioral consideration is not hypocrisy, but Machiavellian ruthlessness.

What an Obama or an Eric Holder says on Monday has absolutely no bearing on what he might do on Tuesday. He said what he said then because it was expedient. It helped get him elected. He does what he does now because it is expedient. It helps keep him in power.

Finis. End of story. Integrity and truthfulness simply do not enter into the equation.

Granted all that, however, there is another issue that the Justice Department’s report raises and that McCarthy is right to emphasize. Forget the hypocrisy, the Machiavellian calculation — or, rather, do not forget them, but place them warily off to one side where you can keep an eye on them — then consider this difficult truth: on the key issue regarding executive power, the Obama administration is right.

As McCarthy puts it:

The commander-in-chief does have the power in wartime to use lethal force against American citizens who join with the enemy, and there is no judicial recourse. The Obama/Holder blather about “false choices” was absurd, because no choice is involved at all: “Our values” are reflected in the Constitution, which calls for due process under the prevailing circumstances, not judicial process under all circumstances. When hostilities rage, “our values” include the laws of war. Under them, enemy combatants may lawfully be killed, captured, and detained without trial, or tried by military commission.

And here’s the critical point:

That goes for American enemy combatants, too — continued foot-stamping to the contrary from progressives and libertarians notwithstanding. The Supreme Court has repeatedly ruled that American citizens who fight for the enemy may be treated like the enemy.

So should we cluster round King Obama and his Royal Emissary, E. Holder? Not quite. Here’s where McCarthy once again demonstrates his laser-like penetration of the salient issues.

Although that draft report is quite right about the principle of executive power, it is “dangerously misguided” in elaborating how that power may be exercised. In short, it is a brief not for the Constitutional exercise of the president’s powers as commander-in-chief. On the contrary: it is a step on the road to rationalizing what McCarthy called “executive imperialism,” that is, the exercise of executive power free from the constraints of Congressional oversight.

The issue is not whether American citizens aiding or abetting the enemy may be killed in war time without the protections ordinarily accorded by the criminal justice system to U.S. citizens. The answer to that is, and always has been, “yes.”

The problem arises when the president unilaterally exercises that lethal power outside the context of Congressionally sanctioned war. “Executive war-making,” McCarthy notes, “is on thin ice, at best, if it exceeds Congress’s combat authorization (or if Congress has not given authorization), and if the United States is not otherwise under either attack or the imminent threat of attack. The Obama guidelines are heedless of these limitations.”

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