In his speech Thursday, May 23, about the future of American counterterrorism operations, President Barack 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.
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.
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 solelythrough 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 justrely 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.
Eric Posner is a writer for Slate.