A leaked Justice Department white paper has renewed the debate over presidential power and the war on terrorism. The timing of the leak, just days into President Obama's second term, was convenient for the many people who have switched sides in that debate.
Conservatives who supported George W. Bush's claims of war power are now alarmed by the prospect of four more years of Obama ordering drone strikes. Without any great self-awareness, they criticize the hypocrisy of liberals who have made the reverse commute between principled positions.
To the extent any of this debate has been serious, it has focused on whether any president should have the authority to order that people be killed without any judicial review, and whether it should make any difference if someone on the kill list is an American citizen.
The white paper says the administration can target any U.S. citizen who is "a senior operational leader" of al-Qaida or "an associated force" on two conditions: if he can't be captured and if "an informed, high-level official" thinks he poses an "imminent threat of violent attack." The paper rejects the normal definition of "imminent threat," reasoning that these people are always plotting to do us harm. It also seems to suggest that capture will rarely be feasible, since we have to move fast to stop these plots.
In practice, then, the White House seems to believe that a U.S. citizen who is high up in al-Qaida, or an affiliate, has signed his own death warrant. (Although the paper doesn't address the question, it implies that non-citizens wouldn't even need to be high up to be killed.)
To support its argument that it has the legal authority to kill citizens, the administration has cited the Authorization for Use of Military Force, which Congress passed three days after the attacks of Sept. 11. That legislation gives the president the power "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
It isn't clear that this justification goes as far as the administration maintains. More than 11 years after the attacks, an al-Qaida affiliate could be led by someone with no real complicity in them. It would be a stretch to say the 2001 law justifies taking action against such a person whether he is a citizen or not. The white paper's secondary justification - the president's "constitutional responsibility to protect the country" - doesn't fill the gap. That responsibility requires the president to act, even in the absence of congressional authorization, against someone planning a specific attack on America. The white paper has more amorphous threats in mind.
It makes sense for the president to have the authority to order the killing of people who weren't involved in the Sept. 11 attacks and aren't known to be hatching a specific attack, but only if they are, in fact, at war with the U.S. There isn't, and can't be, due process on a battlefield - and we don't check citizenship, either. But the war on terrorism has evolved since 2001, and Congress ought to update its definition of the enemy with whom America is at war.
As it does so, it could lay down rules that provide the war on terrorism with more legal and political legitimacy. If this fight has some of the features of a conventional war and some of the features of law enforcement, Congress may need to come up with new institutions to regulate it: "national security courts" to handle detained enemy combatants, for example.
Even the best rules are not, however, a substitute for morally informed judgment. And we have reason to doubt that such judgment is being exercised. The most troubling question the administration's strategy against terrorism raises is whether its reliance on drones is eroding the principle that collateral damage to innocents be minimized.
The administration assures us that it is mindful of this principle. Yet it hasn't disputed a New York Times report that it simply presumes that "all military-age males in a strike zone" are combatants. Liberals, moderates and conservatives should all raise their voices against this practice. The war on terrorism needs a sound moral as well as legal foundation. And that will require not just legislative changes but political mobilization by citizens willing to ask the right questions of America's leaders.