Sunday’s New York Times carries a less than astonishing report, following the Senate Select Committee on Intelligence’s hearings on John O. Brennan’s nomination to be Director of Central Intelligence, that President Obama’s terrorism policies have turned out to be remarkably similar to his predecessor’s. “Obama’s Turn,” the headline runs, “in Bush’s Bind.” Bind? The suggestion is that circumstances compel the policies—a variation on the narrative, as George W. Carey has suggested with a tinge of doubt, that presidents with access to a purported black box of secrets unknown and unknowable to mortals understand the need for security policies whose urgency the rest of us are in no position to evaluate.This makes for a compelling plotline, but William of Occam might be able to identify a simpler one: namely, power. That thesis wields considerable predictive and explanatory capacity. Presidents want power, maintain it, try to expand it. Which news is not going to make the front page of The Times. The problem is that in the age of terrorism, no one seems inclined anymore to resist them—and that is very much worthy of notice.
The recently revealed white paper providing a legal justification for the extra-judicial killing of U.S. citizens determined to be in league with terrorists, which provided much of the fodder for Brennan’s confirmation hearing, indicates a White House with the same extraordinary perception of its own inherent authority as the Bush Administration. To be sure, the claim of utterly unchecked authority to kill U.S. citizens based on determinations wholly internal to the executive branch is indeed troubling, but that is not where the mischief begins. Consider the introductory claim to which no Congressional critic has yet, to my knowledge, taken exception:
The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country, the inherent right of the United States to national self defense under international law, Congress’s authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa’ida under international law.
This is, in the age of terrorism, non-controversial stuff. But it is also, constitutionally speaking, pabulum. To begin with, the president, whose actual authority under Article II is remarkably sparse, has no blanket power to “protect the country”; if he did, it is difficult to see what authority would not fall under it, which also explains why presidents would prefer to believe they did indeed possess it: again, power. The United States does have an “inherent right of self defense,” but note the sleight-of-hand in the presumed concentration of that right and its attendant powers in the person of the president.
The paper completes the illusion by citing the Authorization for Use of Military Force, which it understands to be directed against “this enemy.” Herein lies some of the most pernicious post-9/11 mythologizing, and it is one to which Congress has been, as usual, a party against its own institutional interests. The AUMF in fact authorizes force against those the President determines were responsible for the 9/11 attacks. This has mutated into a general power to use force against terrorists anywhere, anytime, especially those who assume the name “al-Qa’ida.”
Hence the white paper’s title: “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force” (emphasis added). But al-Qa’ida is now a franchise operation on the scale of McDonald’s but with less control of its brand (imagine if any hamburger shack could put up the golden arches), as the papers of what we now know to have been the hapless Osama bin-Laden—holed up in his compound with more influence over his pornography collection than his terrorist network—indicate. The mutation of the AUMF into the blanket authority to fight terrorism under all circumstances makes it an unlimited grant of power—clearly not what Congress intended.
Yet this is also clearly not what Congress is willing to say. Consider its conspicuously non-indignant response to the arrogance of Brennan’s suggestion, responding to whether he would support legislation codifying standards for drone strikes, that legislation was not “necessary,” a formulation that suggests the Senate had just offered to park his car or carry his briefcase. The assumption is that of the legislature as handmaiden of the executive, passing that legislation that is convenient to the exercise of an underlying reservoir of presidential power.
It should be said in fairness to the Senate that several members of the panel were clearly troubled by the Administration’s assertion of an unchecked power to assassinate American citizens. But it is the predicate for that power they must challenge: the assumption of unchecked presidential authority whenever national security is asserted to be at stake. The model they have implicitly accepted instead is one in which the president occupies the driver’s seat and they, like a timid driver’s education instructor, ride shotgun with an extra brake they only occasionally apply. The constitutional model goes the other way round.
That the president has conceived of things in this way is, again, not astonishing. Power attends the office; it attracts personalities interested in its pursuit. What is completely foreign to the separation of powers, and what explains its erosion but not the psychology behind it, is that Congress should be so completely uninterested in its own authority. The diffusion of power, long a conservative value, recognizes that some people will want too much of it. It is hard to see how to maintain it when others want so little.
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