By Robert Kimball
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 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.”
Convictions? Courage?
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.
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