This is where things get murky, not to say scary:
The white paper suggests that, independent of congressional authorization, the president has some amorphous reservoir of authority — created by a combination of his general Article II powers and international law (particularly the latter’s recognition of a self-defense right) — to instigate military operations on his own. The administration would comfort us regarding this imperious claim by purporting to limit it to “imminent” attack situations, and stipulating that lethal force should be used against Americans only when capture is “infeasible.” But the guidelines provide Orwellian definitions of imminence and feasibility – such that these are not really limitations at all.
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.
If this all sounds abstract, McCarthy offers a vivid example that should keep you up nights.
Remember Libya: John McCain’s favorite transvestite dictator, Col. Qaddafi, etc., etc.? All of a sudden, you’ll recall, the U.S. went from chummy to churlish about Libya. Congress didn’t authorize, Libya was not threatening to attack the U.S., but there we were — actively engaged in removing the piece called Qaddafi from the board.
“Let’s say,” McCarthy hypothesizes, “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.”
What do you think of that? McCarthy is right:
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.
Perhaps the most important sentence in McCarthy’s entire piece of important sentences is this: “The Constitution remains, primarily, every American citizen’s protection against federal-government abuse.” Note the italicized phrase. It is just this — the idea that the Consitution is primarily a means of limiting state power — that Obama, like so many “progressives,” has never been able to get his mind around.
As he acknowledged in an infamous radio interview before he became president, he thinks it a flaw that the Constitution is a “charter of negative liberties,” that it tells you what the state cannot do to you, but not what the state must do for you. Exactly right. But that “negative” character is precisely what the Founders struggled so hard to articulate.
They rightly saw that the fundamental issue was the intrusion of state power on the liberties of citizens, but the music of liberty is something about which the Left has always been tone deaf.
McCarthy ends his essay by suggesting that the Justice Department’s white paper, though flawed, offers an opportunity for important clarification. The war against terror is currently prosecuted under the 2001 Authorization of the Use of Military Force passed by Congress after 9/11. That authorization, McCarthy argues, “is badly in need of updating.” It is difficult to remember that 9/11 took place more than a decade ago. A lot has changed on the ground since then. Here’s where hypocrisy breeds opportunity:
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.
[W]e 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.