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.
In parliamentary systems, the executive is bound by the decisions of the legislature (at least in theory). People with vague memories of junior high civics class might think the same principle applies in the United States. It doesn’t. The Constitution gives the executive independence from Congress. Madison, who like other founders feared tyrannous legislatures as much as tyrannous executives, made this explicit in his famous statement in The Federalist Papers. “The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.” The president resists encroachment from Congress by refusing to obey, or by narrowly interpreting, statutes that infringe on his constitutional powers, including war powers. When Congress and the executive clash about the meaning of those powers, there is no neutral way to decide who is right.
That is why precedent looms so large in determining the actual allocation of powers. Presidents disregard the Constitution’s mandate to obtain the advice of the Senate when making treaties because George Washington decided that the injunction was impractical and the Senate acquiesced. The president’s power to interpret or disregard treaties likewise reflects long-standing practice: One clear example is President Carter’s withdrawal of the United States from a treaty with Taiwan in 1979. Other presidents have also narrowly interpreted, or simply violated, the War Powers Resolution, as President Clinton did during the conflict with Serbia in 1999. Even targeted killing outside of warfare is not new: Consider Clinton’s cruise missile strike in 1998 against a Sudanese pharmaceutical factory that allegedly manufactured chemical weapons. By allowing such examples of executive muscle flexing, Congress has ratified them. That is how our system works.
When the Bush administration was at the bench press, the left managed to create a narrative, largely accepted by the media, that the president was lawless. Now that it’s Obama’s turn, has the story changed? Friedersdorf takes the both-are-lawless path, and gets points for consistency, but he is tilting at windmills—both parties and mainstream public opinion support a president who can forcefully counter threats. Harold Koh, by contrast, argued in a recent speech that Obama is different and better than Bush was. He said that a “critical difference between this Administration and its predecessor is the Obama Administration’s determination not to address Al Qaeda and the Taliban solely through the tools of war.” Also:
“The Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s vague constitutional powers.” (I have added the emphases.)
But as national security law expert Ben Wittes points out, these statements are false. Bush did not solely use the tools of war; he also used civilian law enforcement, for example, by prosecuting Jose Padilla—indeed, more than Obama has. Bush did not just rely on presidential powers; he also relied on domestic law, just as Obama has. Similarities between the two presidents in overall legal approach dwarf the differences in rhetoric, atmospherics, and a few narrow legal questions.
Certainly, Obama is every bit as ruthless as his predecessors in pursuing what he sees as the requirements of national security. The apparent decision within his administration to kill enemy combatants with drones rather than capture them (detailed once again in Mark Mazzetti’s book Way of the Knife) is one of many examples. The hard line on leaks is another. The rhetorical smiley faces in Obama’s speech should fool no one.
So civil libertarians are free to claim that Obama disregards civil liberties that they wish for. But they are wrong to claim that Obama disregards civil liberties protected by the Constitution. You may not like it, but it is the Constitution we have.