Arguing About Executive Power

Over at The Corner, Andy McCarthy has expounded at length on why he believes that President Obama is vested with the unchecked power to designate American citizens as enemy combatants and execute them.

He begins:

If we have American citizens who are fighting for the enemy in a war, some official of the government has to be responsible, in an ultimate way, for how we deal with that. In our system, that is the president. There can be no credible dispute about that. The Constitution makes the president the commander-in-chief, and thus the official responsible for the conduct of war. To the extent it was any of the courts’ business, the Supreme Court has held that there is no difference between American and alien enemy combatants — if they are fighting for the enemy, they can be treated as enemy combatants, meaning they can be killed or captured and detained outside the civilian justice system. The president is unquestionably the one to whom the Constitution entrusts this call.

I’ve got two objections. One is that a single official need not be ultimately responsible — different officials in co-equal branches could share responsibility, as they do on numerous matters of great importance. The other objection is that an American “fighting for the enemy” is doing a lot of work here. It raises two questions: a) who is empowered to make the determination that a given American is in fact fighting for the enemy? b) Does “fighting” imply actual combat on a battlefield, or does it include, for example, a propagandist for the enemy who is hundreds of miles from any battlefield, sitting at the dinner table with his wife and kids when he is targeted for killing?

Mr. McCarthy goes on:

I think it’s a good thing that you emphasize that your question is more moral and political than legal. The system the framers gave us was for a free, self-determining, adult people. It was not to be principally regulated by judicial processes. It was to be regulated by political processes, which is where the people’s moral sense best expresses itself.

The Framers gave us a system in which the judiciary is a co-equal branch and the direct election of Senators didn’t exist. This is somewhat at odds with Mr. McCarthy’s characterization, which implies a lesser judiciary and contemporary institutions that are the same as they ever were.

All power can be abused, so reposing power in the courts is no more assurance that it won’t be abused than reposing it in the president. FWIW, I think the judicial power is far more likely to be abused because it is unaccountable. We can vote the president out of office if he oversteps his authority — and if he does it severely enough, he can be removed by impeachment. We can’t vote judges out of office and the possibility of impeaching them for poor judgment (as opposed to personal misconduct) is very remote.

This is Mr. McCarthy’s silliest argument. Critics of an unchecked presidential power to assassinate American citizens are hardly arguing that unelected judges should be empowered to order identical killings! We are arguing that no single person or branch of government should be able to make the determination that an American is “the enemy” and to kill that person — that a power as awesome as that must be checked and balanced. And, of course, if a single branch were to make a determination and give the order, the judiciary would be the least likely to succeed in abuses, because they control neither a police force nor an army: another branch would have to agree to carry out their order, which itself would be a check.

Says Mr. McCarthy

The examples you give of me frustrating DOJ and the reporter mishandling classified information are good ones for making this point. The category of person our government may lawfully kill or capture in wartime is “enemy combatant” (or “enemy belligerent,” the term Congress used in the last amendment of the Military Commissions Act, in 2009). To fit into this category, one would have to fall within Congress’s target in the 2001 Authorization of the Use of Military Force or within Congress’s subsequent definitions of enemy combatants. The AUMF authorizes force against “those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The later statutes brand as an enemy combatant or belligerent (a) members of al Qaeda, (b) one who engages in hostilities against the U.S. or its coalition partners, and (c) one who purposefully and materially supports hostilities against the U.S. or its coalition partners (the last category is controversial). My carrying out lawful activities that have the effect of frustrating DOJ would clearly be outside these definitions. The reporter engaging in the illegal handling of classified information may violate several laws, and may thus be prosecuted, but does not become an enemy combatant or belligerent who may lawfully be killed.

At issue here is whether the president should be empowered to classify someone as an enemy combatant as defined by Congress without any review, or whether the judiciary has a role in ruling that in a given case, the president has classified someone as an enemy combatant that doesn’t in fact meet the legal definition.

It is also worth noting how open-ended Congress’ 2001 Authorization of Use of Military Force is! That itself is cause for concern, and should be revisited.

While the president lacks the legal authority to kill me or the reporter, he does have the power to kill us. Indeed, he has that raw power regardless of whether there is a war or not. What stops him from taking such actions is his own moral sense (including his oath of office), his understanding of our moral sense (meaning, it would be a political catastrophe to take such an action), and the potential for impeachment.

Given Mr. McCarthy’s preferred policies, I think it’s inaccurate to say that the president lacks the legal authority to kill him. Mr. McCarthy would argue that he isn’t an enemy combatant under the Congressional definition… but a tyrannical president could respond, “As you yourself admit, it is I, the president, who has the unchallengeable legal authority to decide to fits the category enemy combatant.”

I suppose it’s also possible that he could be prosecuted for murder, but there are legal questions about whether that is so. I doubt, in any event, that possible prosecution would weigh much in a president’s calculations. The moral and political pressures more than suffice as operational constraints.

If that is true one wonders why the Framers were so careful to create procedural safeguards for people accused of treason.

Consequently, I don’t worry as much as Kevin does that the targeted assassination authorization is a reckless precedent. In fact, Obama is not creating a precedent; he is following one. Quirin is the German saboteur case from 1942. One of the eight combatants was an American citizen and six of them were executed within seven weeks of capture (off the top of my head, I don’t remember whether the American was executed or was one of the two combatants who were given long jail sentences). Despite the Quirin precedent, we really didn’t have another controversial case involving an American enemy combatant for over half a century. At that point, President Bush used the power exactly twice, and both instances (Hamdi and Padilla) clearly involved al Qaeda members. President Obama is now resorting to it for someone who is also clearly a member of al Qaeda. So while it’s certainly possibly that this power could be abused in the outrageous way Kevin suggests, experience does not indicate that it will be.

Nor does experience indicate that allowing judges to review these decisions would in any way jeopardize national security.

Finally, let me push back a bit on Kevin’s fear that powers and precedents can be stretched way beyond what was originally intended — as he says, witness the commerce clause. While that’s undeniable, our experience in the national security area shows that this can and often does work in the opposite direction — sometimes catastrophically. FISA and the infamous Clinton-era “wall,” for example, were overreactions to the broad powers to conduct warrantless surveillance conferred on the president by both the Constitution and court precedents. That is, Congress (in FISA) and the executive branch itself (in DOJ’s wall regulations) quite intentionally attempted to limit the president’s national-security power such that it was less than what the Constitution confers. One result was that, when an FBI national security agent realized in August 2001 that two al Qaeda terrorists were in the country, headquarters refused to allow the FBI’s criminal division to assist in locating them, interpreting the wall to forbid this type of collaboration. On September 11, those two terrorists were part of the team that plowed Flight 77 into the Pentagon.

I think the moral of the story is that the framers intentionally reposed awesome powers in the presidency. They were wise men and they well knew that power could be abused, but they believed (rightly, I think) that we could check abuse by the separation of powers and by ensuring that the president is politically accountable.

But the pre-9/11 policies that Mr. McCarthy denounces were created under the system given us by the very same Founders!

Equally important, the framers (unlike us, I’m afraid) understood that the United States and our liberties were not necessarily forever, and that we would occasionally have to fight for them. They thus created a presidency that could quickly and decisively marshal all the power the United States is capable of bringing to bear in order to defeat threats to our security. There is always the danger that a rogue can accede to this power. When that happens, the problem is the rogue, not the power.

Actually, the Framers created a presidency that was required to wait for Congressional authorization prior to quickly and decisively marshaling all the power of the United States!

UPDATE: Kevin D. Williamson responds to Mr. McCarthy too. And Jonah Goldberg for some reason thinks it’s important to remember that the White House wants us to argue about this. I’m not sure what that means.

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3 Responses to “Arguing About Executive Power”

  1. jasong Says:

    Chris Floyd gets it right:

    Barack Obama has ordered the murder of an American citizen, without trial, without due process, without the production of any evidence. All it takes to kill any American citizen in this way is Barack Obama’s signature on a piece of paper, his arbitrary designation of the target as a “suspected terrorist.” In precisely the same way — precisely the same way — Josef Stalin would place a mark by a name in a list of “suspected terrorists” or “counterrevolutionaries,” and the bearer of that name would die. This is the system we have now, the same as the Soviets had then: a leader with the unchallengeable power to kill citizens without due process.
    That this power has not been used on the same scale in the American system as in the Stalinist state — yet — does not alter the equivalence of this governing principle. In both cases, the leader signs arbitrary death warrants; the security services carry out the task; and the ‘great and good’ of society accept this draconian power as necessary and right.
    This is what you support when you support Barack Obama. It does not matter if you think his opponents in the factional infighting to control a bloodsoaked empire and its war machine are “worse” than he is in some measure. When you support him, when you defend him, when you excuse him, it is arbitrary murder that you are supporting. It is the absolute negation of every single principle of enlightenment and human rights professed by liberals, progressives — indeed, by honorable people of every political stripe — for centuries.

    If you support Obama now, in this, then there is no crime he can commit that you will not support.
    And thus you become one of those people that we all used to puzzle over, the accomodationists to brutal tyranny: “How did all those people go along with the Nazis? Why wasn’t there more opposition to Stalin? How could they countenance all those obvious abominations? What kind of people were they?”
    Now you know. They were you. You are them.

    And Glenn Greenwald:

    Here again, we see one of the principal and longest-lasting effects of the Obama presidency: to put a pretty, eloquent, progressive face on what (until quite recently) was ostensibly considered by a large segment of the citizenry to be tyrannical right-wing extremism (e.g., indefinite detention, military commissions, “state secrets” used to block judicial review, an endless and always-expanding “War on Terror,” immunity for war criminals, rampant corporatism — and now unchecked presidential assassinations of American citizens), and thus to transform what were once bitter, partisan controversies into harmonious, bipartisan consensus.

    Also noteworthy is the irony that all of the extended debates and (largely self-imposed) obstacles we’ve just witnessed regarding government efforts to protect the health and wellbeing of U.S. citizens seem to be completely absent when it comes to government efforts to kill its citizens.

  2. jasong Says:

    An additional, essential point by Greenwald from last year:

    The claim that the President takes an oath to “defend the country” — as though he’s some sort of National Security Daddy-Monarch whose supreme, overriding duty is to Keep Us Safe — is one of the most basic, common and destructive myths in our discourse. … This deceitful description of the Presidentíal oath — just like the compulsion for civilians to refer to the President as “our Commander-in-Chief” even though he is no such thing to civilians — reflects the modern fetishization of the President as Supreme Military Protector, who has few other duties that matter, if he has any, other than single-handedly protecting us from danger.
    The President doesn’t have some broad, vague duty to “protect Americans.” The Constitution really couldn’t be clearer about the President’s primary responsibility: it’s to preserve, protect and defend the Constitution. Sometimes, the duty actually assigned by the Constitution is consistent with the duty to Keep Us Safe, but many times, Constitutional imperatives are, by design, in conflict with the goal of maximum security.

  3. Not So Squishy: An executive o… | America First Says:

    […] Arguing About Executive Power – Conor Friedersdorf – Metablog … […]

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