Over the years, Andrew McCarthy has written many important articles about what in the bad old days of President Bush was called “the War on Terror.” As a former federal prosecutor, he brings a rare authority and insight to the complex questions that surround this shadowy precinct of national security. He has actually met, and helped put away, some very bad guys, including the so-called “blind sheikh” Omar Abdel-Rahman, currently serving a life sentence in one of Uncle Sam’s many official guest houses for his role in the 1993 World Trade Center bombing and other acts of violence (including the 1997 Luxor massacre that left 62 people, mostly tourists, dead and mutilated).
Central aspects of McCarthy’s thinking about these issues — both the war against terror itself and the novel legal challenges that prosecuting that war poses for a constitutional democracy — are laid out in Willful Blindness, his 2008 memoir of prosecuting the blind sheikh, and The Grand Jihad, his 2010 anatomy of how the ideologies of Islam and the Left conspire to undermine political and religious freedom. Just a couple months ago, he supplemented these studies with Spring Fever, an acerbic look at the fatuous naïveté that allowed — and continues to allow — so many credulous observers to embrace the rise of the Muslim Brotherhood and kindred groups in Africa and the Middle East as the burgeoning of an “Arab Spring.” I am proud to say that all of these books were published by Encounter Books, whose helm I guide.
What makes me mention McCarthy’s work just now, however, is “The Problems of the White Paper,” the splendid piece of political-legal analysis he offered readers a couple of days ago in his NRO column. It is a must-read.
There has been a lot of comment, and even more hand-wringing, about the draft report that just surfaced from Obama’s Justice Department outlining “the circumstances in which the U.S. Government could use lethal force [read: drone attack] in a foreign country outside the area of active hostilities against a U.S. citizen” who is a member of al-Qaeda or “an associated force.” Talk about duck and cover! Will Karl Rove now have to watch his back? There have even been a few good cartoons on the subject:
There are, as McCarthy points out, two important lessons to be learned from the report. One concerns hypocrisy. Candidate Obama and lawyer Eric Holder were ostentatious critics of President Bush’s strategy of dealing with terrorists. Obama the candidate, remember, promised to close Guantanamo Bay, professed to be horrified by waterboarding, and insisted that “our values” and our national security were deeply “intertwined.” And before he became attorney general, Eric Holder actually volunteered his services to the enemy.
“At the time,” McCarthy points out, “he was a senior partner at a firm that was among the Lawyer Left’s most eager to provide free legal help to al-Qaeda enemy combatants in their lawsuits against the American people.” Among other things, Holder “filed an amicus brief on behalf of Jose Padilla, an American citizen turned al-Qaeda operative who was sent to the United States by Khalid Sheikh Mohamed in 2002 to attempt a post-9/11 ‘second wave’ of mass-murder attacks.”
Just the sort of chaps you want running the country, right?
Well, the American people have made that bed, and now they have to sleep in it. McCarthy is right about the “breathtaking hypocrisy” emanating from the Obama administration in general and from the Justice Department in particular. He cites chapter and verse about this, and for any Democrat whose sense of shame is intact, contemplating the facts would be a squirm-inducing experience.
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.”
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.
Will it happen? I’m not holding my breath. “All President Obama has to do is lead,” McCarthy writes. “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.”
I heartily second McCarthy’s list of desiderata. It’s been a long time, though, since I’ve seen much in the way of conviction or courage on display in Washington.