The Problems of the White Paper

To linger on the hypocrisy is to miss the big picture. 

By Andrew C McCarthy

My, how the worm has turned. 

Seems like only yesterday that Eric Holder was inveighing against sweeping executive war powers. These were the Bush years, when Holder could readily be found caviling about such odious practices as “secret electronic surveillance against American citizens” and “detain[ing] American citizens without due process of law.” Back then, Holder declared these Bush war crimes so “needlessly abusive and unlawful” that the American people (translation: the Bush-deranged Left) were owed “a reckoning” against the officials who conjured them up.

But once he became attorney general in a Democratic administration, the ever-malleable Mr. Holder decided there was actually no problem killing American citizens without due process of law, based on intelligence gleaned from secret surveillance.

The breathtaking hypocrisy of the Obama Democrats is what screams off the pages of the “white paper” Holder’s Justice Department has served up to support the president’s use of lethal force against U.S. nationals who align with our foreign terrorist enemies. It bears remembering that Holder, like his Gitmo Bar soul mates, once volunteered his services to the enemy. At the time, 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. 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 so you get the gist of where Holder was coming from, an amicus (or “friend of the court”) brief is not something a lawyer has to file on behalf of a client. Padilla already had other counsel. Holder was a party crasher, gratuitously intervening — exploiting his status as a former Clinton deputy attorney general — to steer the court toward his desired policy.

And that desired policy? Holder wanted terrorism relegated to the criminal-justice system, as it had been before Bush pivoted to a law-of-war paradigm. According to the pre-2009 Holder, if an enemy-combatant terrorist, particularly an American citizen, is encountered away from a traditional battlefield, the Constitution demands that he be given the rights of a criminal defendant. Executive action against him may be taken only under judicial supervision. Yes, Holder conceded, this might mean that the government will be barred from detaining and interrogating many a “dangerous terrorist.” And yes, it risks the reprise of 9/11’s slaughter of nearly 3,000 Americans. “But,” he blithely concluded, “our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.”

Ah, but arbitrary power to kill citizens — now, that’s a different story.

We could go on all day about chutzpah. Holder and Obama used to sneer that Bush/Cheney counterterrorism posed a “false choice” between our security and “our values.” Now, they’ve decided not only that the commander-in-chief’s war powers extend beyond “hot battlefields” to anyplace on the planet the president chooses, but also that the last thing we need is judicial oversight. After all, the white paper declaims, “matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention” and “turn on standards that defy judicial application.”

Who knew? Indeed, who knew that Clarence Thomas — Clarence Thomas — had become Obama’s favorite Supreme Court justice? 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. 

It is tempting to dwell on Obama’s political posturing, on the fraud that runs through everything from Left’s condemnation of waterboarding to its precious fretting over Bush’s Gitmo “gulag” — as opposed to the Obama graveyard. To linger on the hypocrisy, however, is to miss the big picture. That requires us to look at three things.

The first is that, on the central question, the administration is right: 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.

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. Ever notice that the people forever insisting on judicial interventions are the first to ignore the courts when the rulings go against them?

The second big-picture issue is the substance of the Obama guidelines. Despite proceeding from a sound premise, the Justice Department white paper is dangerously misguided. Ironically, this is mostly because the administration is guilty of exactly the error the Left accused President Bush of, often unfairly: an executive imperialism that fails to respect Congress’s war powers and to seek legislative buy-in.

No credible person questions the following two propositions: (1) The president has not only the authority but the obligation to use any force necessary to repel attacks or prevent truly imminent attacks; and (2) when combat operations are authorized by Congress, which is endowed with the constitutional power to declare war, the president may use any force he judges necessary within the parameters of Congress’s authorization. In those two situations, if American citizens are killed while fighting for the enemy, there is no constitutional violation.

Nevertheless, outside these two situations, presidents can veer into lawlessness. Executive war-making 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.

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.

Let’s try to be more concrete about it by considering a hypothetical based on the Libya war. Obama launched that war unilaterally: There was no congressional authorization, no threat of attack against the United States, and no vital American interest imperiled. Let’s say 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.

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. 

The ongoing war against al-Qaeda and its affiliates is legitimate under the Authorization of the Use of Military Force passed by Congress in the aftermath of 9/11. But the 2001 AUMF is not the showstopper it is portrayed to be by the white paper, by administration supporters, and by the national-security Right. As I’ve argued before (see, e.g., here), it is badly in need of updating.

To be sure, the AUMF is sweeping in terms of allowing the president to target “nations, organizations or persons” without any geographical limitations — Anwar al-Awlaki in Yemen and Jose Padilla in Chicago were no less eligible for enemy-combatant treatment than Yasser Hamdi in Afghanistan. Yet the AUMF is narrower than commonly thought, and surely narrower than the Obama white paper intimates. That is because, to qualify as enemy combatants, the AUMF requires that these nations, organizations, or persons must either have been complicit in the 9/11 attacks or have harbored those who were complicit.

September 11, 2001, was a dozen years ago. Many jihadists who now threaten us did not join al-Qaeda and its affiliates until years after the attacks. In fact, some affiliates, such as the Pakistani Taliban, did not even exist on 9/11. To be sure, the AUMF went on to say that the reason Congress was authorizing combat operations was “to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” But that clause did not unmoor what is otherwise the AUMF’s literal grounding in 9/11. Certainly, the fuzzy “future attacks” language is a thin reed on which to rest the use of lethal force against Americans — or anyone else — who had nothing to do with the 9/11 attacks, even if they are jihadist savages. I doubt many Republicans would have much use for judges who construed the Constitution with the same organic grandeur that colors the standard Republican reading of the AUMF.

This brings us, finally, to the last big-picture point: 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.

Though neither the civilian nor the military justice system is a comfortable fit for modern international terrorism, we have wasted years slamming the square peg into these round holes. Instead, we should have been designing a new, hybrid legal framework for the modern realities of international terrorism: the need to detain jihadists who cannot be tried under civilian due-process standards; the need effectively to interrogate jihadist prisoners to whom Geneva Convention protections for honorable combatants do not apply; the need to conduct searching, rapid-fire cross-border surveillance; the need to capture and sometimes kill enemy operatives who lurk in the shadows, far from traditional battlefields — some of whom will inevitably be American citizens; the need to revise the AUMF to reflect the current state of the war and remove uncertainty — or illegitimacy — in the determination of who qualifies as an enemy combatant.

For many years, I have argued that we 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.

All President Obama has to do is lead. 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.

— Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy, which is published by Encounter Books.