Last Saturday, NRO’s Andrew McCarthy wrote a piece entitled “What Rand Paul Misses,” wherein he accuses Sen. Rand Paul and Co. of “messing around with the Constitution in a manner we will come to regret.” McCarthy’s article (which you can read here) merits serious consideration, and I urge you to check it out if you haven’t done so yet.
McCarthy’s piece is of value partly because he helped bring out something that might too easily get overlooked in all the responses and counter-responses to Sen. Paul’s filibuster, which is this: There aren’t just two positions in this debate over the president’s authority to kill US citizens on US soil extra-judicially (the Pauls and the McCains); there are at least three (the Pauls, the McCains, and the McCarthys). The McCain camp (and, I’ll add, prior to Sen. Paul’s filibuster, the Obama-Holder camp) apparently believes that the president can unilaterally and extra-judicially kill, on US soil, US citizens not engaged in imminent acts of hostility against the United States; the Paul camp categorically denies the constitutionality of the foregoing position; meanwhile, the McCarthy camp (which may only consist of McCarthy, for all I know) has tried to stake out a constitutionally-supported middle ground, viz., that the president may order the extra-judicial killing, on US soil, of US citizens not engaged in imminent acts of hostility against the United States, provided the president has been given prior congressional authorization (per something like the AUMF).
McCarthy’s position is certainly an improvement over McCain’s, but still leaves much to be desired. He essentially says that Paul and his ilk are not reading the Constitution properly; in fact, as he puts it, the Constitution “could potentially invest” the president with “theoretically limitless power” with regard to his capacity as Commander-in-Chief. But since “the Constitution makes Congress the master of what force is lawfully authorized,” they must “activate,” so to speak, that “theoretically limitless power.”
Interestingly, McCarthy doesn’t tell us where in the Constitution he’s getting all this from; maybe he sees it as so obvious that he thinks those of us who (respectfully) disagree should, too. He does quote from Federalist #23, but I don’t think his quotation backs up his case. (Digression: He quotes Alexander Hamilton as saying that, since “the circumstances that endanger the safety of nations are infinite…no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” But Hamilton wasn’t referring to giving the president “theoretically limitless power” as Commander-in-Chief during wartime; he was talking about giving the federal government the constitutional authority to establish and raise a standing army, a power it was denied under the Articles of Confederation. Totally different ballgame.) So, let’s see how the Constitution answers the question, “Does the president have the power to kill US citizens on US soil who are not engaged in an imminent act of hostility (like a terrorist act) without regard for due process, so long as he gets congressional authorization first?”
First of all, Article I, Section 8 does empower Congress to authorize the president to use military force when necessary. I think we can all agree on that, so that’s settled. Article IV, Section 4 tells us that the federal government “shall protect each of [the states] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” As I understand it, this is saying that the president may use military force domestically, provided that such use of military force is first requested by the government of the state(s) being threatened. All of that tells us that McCarthy is right about two things: That the president cannot employ military force without congressional authorization, and that the president may in fact use military force domestically.
But remember, we are considering more than merely whether the president may employ military force on US soil; may he do so against US citizens on US soil without following due process? That is a more nuanced question, and requires a more nuanced answer.
Let’s imagine a scenario in which an American citizen is actually in the process of executing a hostile act against this country (e.g., getting ready to place and detonate a bomb, preparing to snipe someone, etc.), sort of a domestic John Walker Lindh, if you will. In a case like this, one must do “what is sensible under the circumstances,” as McCarthy states it. If arrest/detention is impossible–if the use of lethal force is the only viable option–then it seems reasonable to allow the president to order the use of deadly force. This is in keeping with the Constitution, and I really see no reason to think otherwise.
Now, let’s imagine a second scenario, one posited by McCarthy:
Let’s suppose we have an American scholar of Islam fulfilling the role of the Blind Sheikh — i.e., a jurist schooled in sharia with sufficient academic depth to be qualified to issue fatwas approving terrorist attacks.
Ostensibly, our American sheikh might be sitting passively in a mosque, a café, or an apartment. He certainly doesn’t look like an enemy combatant — especially if, as was the case with the Blind Sheikh, various maladies render him incapable of building a bomb, carrying out an assassination, or doing most things of use to a jihadist cell. Yet in the enemy’s doctrine, attacks cannot happen until he green-lights them. Senator Paul says he’s fine with lethal force against imminent threats. So, when does our sheikh get imminent? When the phone rings? When some other innocent-looking young man comes into the café, sits down at his table, and starts whispering in his ear?
Admittedly, this is a thornier question, but I think McCarthy gives the wrong answer. He basically says that it’s fair game for Congress to authorize the president to take this guy out (extra-judicially) via a Hellfire missile strike. (OK, to be fair, he doesn’t say that, but I suspect he wouldn’t object to the idea.) The problem is that he’s conflating the sheikh’s role in the terrorist plot with that of the actual operatives. Maybe the actions of the operatives “greenlighted” by the sheikh should be met with deadly force. But that’s because they are the imminent threat. So far as the sheikh who issued the fatwa is concerned, he should be apprehended and tried for seditious conspiracy, per the precedent set in the case of Omar Abdel-Rahman (the Blind Sheikh). He’s not the imminent threat, at least not until he, too, participates in the actual execution of a terrorist plot. Until he crosses that line, though, his due process rights should be respected.
OK, time for a third scenario: What if we’re not faced with confronting a John Walker Lindh or an Omar Abdel-Rahman, but an Anwar al-Awlaki, safely (so far as he knows) disseminating propaganda and greenlighting terrorist acts from behind enemy lines, so to speak? What if he’s not really an “imminent” threat, since he’s not actually carrying out a plot, but arrest is not feasible? Is there a solution to this problem that doesn’t either violate the Constitution or completely tie the hands of the US government?
I think so, yes. What about something like an ex parte hearing? The individual in question could be charged with treason (for “adhering to”–i.e., sympathizing with–and “giving aid” to enemies of the US) and tried, in keeping with Article III, Section 3 of the Constitution. If convicted, this individual’s actions could conceivably be punished by lethal force (e.g., a drone strike), if so authorized by Congress. The appeal of such a solution, I argue, is that it is both expedient and constitutional.
So, while McCarthy is partly right, he’s also partly (and significantly) wrong: Even Congress cannot give the president “theoretically limitless power” to prosecute a conflict, because the Constitution just flat doesn’t allow it.
As it turns out, then, Rand Paul really didn’t miss anything.