In his speech today about the future of American counterterrorism operations, President Obama said that he will order drone strikes less frequently and redouble efforts to transfer some detainees out of Guantánamo. He suggested a more focused approach to terrorist threats in light of the diminished capacity of al-Qaida. Yet he also maintained the administration’s long-standing legal approach. The speech thus may well confirm the view among Obama’s civil libertarian critics that he is the most lawless executive since, um, George Bush. They are right to see the continuity from one president to the next, but they are wrong to believe that Obama has violated the law.
I have discussed the legal basis of the war on terror before. The 2001 Authorization for Use of Military Force, updated in the 2012 National Defense Authorization Act, gives the president war powers against al-Qaida. War powers include the power to kill, to capture, to detain, to interrogate, to engage in surveillance. These powers have been further confirmed and regulated by Congress in numerous other statutes, and approved by the courts.
Critics argue that the Obama administration violated the rights of the Islamic cleric Anwar al-Awlaki, an American citizen killed by drones in Yemen, by failing to capture him and give him a trial. But the Constitution does not require trials for enemy combatants, not even Americans. The Obama administration has actually gone beyond its predecessors by stating that it will not engage in targeted killings of Americans overseas unless they pose an imminent threat and cannot be captured. (Note, however, that imminent does not mean what the dictionary says.) The administration has also recognized the drone killings of three other Americans who were not targeted but wandered into the line of fire. No law prohibits such accidental deaths unless they were the result of extreme carelessness or indifference to the lives of civilians.
In short, when it comes to drone killings, Obama has broken no law. To be sure, some of the president’s other national security-related actions have been more questionable. Conor Friedersdorf, in a cogently written piece, points to President Obama’s refusal to prosecute Bush administration officials for torture and war crimes. The Convention Against Torture requires the government to investigate, prosecute, and punish alleged torturers. But our government ratified the treaty while declaring that it is not a part of U.S. law. That means that even if the president did violate the treaty, he did not violate the U.S. Constitution. The Constitution also gives the president discretion over whether to enforce the law, so if Bush officials violated the domestic anti-torture statute, Obama is free not to prosecute them. If the president believes that the torturers would not be convicted because they had official immunity based on the Justice Department’s opinions about the legality of the interrogations at the time, or that a jury would acquit, or even that prosecutions would interfere with his political agenda, he may decline to prosecute.
Friedersdorf also argues that President Obama’s military intervention in Libya in 2011 violated the War Powers Resolution, which requires the president to withdraw troops unless Congress gives approval within 60 days. The Obama administration argued that the War Powers Resolution did not apply to Libya because the 60-day clock begins to tick in the event of “hostilities,” and this means something more warlike than the limited air attacks in which the U.S. engaged.
This argument echoes the Bush administration’s dubious claim that waterboarding is not “torture” because it does not exceed the necessary threshold of pain. But presidents have always advanced strained interpretations of statutes that conflict with what they see as their constitutional powers to make war and conduct foreign policy. This is a polite way for the president to do what he wants without explicitly defying Congress. (There is even a legal doctrine that reflects this principle; it’s called the “canon of avoidance”). For good or ill, it is a practice that is rooted in tradition going back to the founders.