Suppose a U.S. military special operations unit came upon an al Qaeda training camp in Africa. It discovers terrorist trainers teaching recruits how to use automatic weapons, improvise explosive devices, and practice suicide attacks and small unit tactics. Though the personnel hail from different nations, reconnaissance suggests that some of them may be Americans.
What should the team do? Under the laws of war, the U.S. military unit can surprise the instructors and recruits with snipers and artillery as well as shooting at closer quarters. But under President Barack Obama's half-hearted approach to terrorism, revealed in Tuesday's leaked Justice Department memo, military units on the ground or drones in the air would have to pause and seek guidance from multiple bureaucrats. Instead of having the traditional authority to kill the enemy and destroy their resources, American soldiers and agents have entered a legal netherworld of Obama's creation. The speed and decisiveness of U.S. counterterrorism operations will suffer, even as the administration withdraws from Iraq and now Afghanistan, and gives up the intelligence networks there.
In place of the clarity of the rules of war, the administration has thrust American soldiers into the three- and four-factor balancing tests that govern police officers walking the beat in downtown New York. For the first time in the history of American arms, presidential advisers will sit and weigh the "due process" rights of enemy soldiers, judge whether they pose an "imminent" threat, or decide if capture "becomes feasible." Due process rights for the enemy, according to the DOJ memo, will require a careful balancing of the "nature and quality of the intrusion" on the enemy's constitutional rights against "the governmental interests." And Attorney General Eric Holder limits the target to "an operational leader continually planning attacks" against the United States.
To be clear, the memo, technically a "white paper," is correct in affirming that the United States is at war with al Qaeda. That conclusion rests on the actions of two presidents over four terms, Congress over the past decade, the Supreme Court, the U.N. Security Council, and NATO. It cannot be seriously disputed -- although some liberal critics cling to the belief that al Qaeda is simply a criminal conspiracy, not a true belligerent, and that only law-enforcement actions, not military ones, may be taken against it. Given that the United States is at war, it follows that it may legitimately use lethal force against enemy combatants, regardless of their nationality. Enemy soldiers, even when not engaged in active hostilities, are legitimate targets during war. If that is true of enemy soldiers in uniform, it must be true also of al Qaeda operatives, who may not wear uniforms but who are the functional equivalent of regular troops. And just as a U.S. national serving in the German Army in 1944 or the Confederate Army in 1863 could be lawfully targeted and killed, so may a U.S. national performing a military function for al Qaeda.
Despite claims that the president is asserting a radically new and menacing authority, Obama's decision to target al Qaeda operatives who are U.S. nationals is by no means unprecedented. The fact is that American presidents (and state governors) have lawfully deployed military force against citizens in insurrection, rebellion, or war against the United States from the beginning of the nation. In 1787, the very year in which the Constitution was framed, the governor of Massachusetts deployed the state militia to put down Shay's Rebellion. President George Washington personally led federalized militia troops into western Pennsylvania to suppress the Whiskey Rebellion of 1794. President Andrew Jackson threatened to use force against South Carolina in the "nullification crisis" of 1832. During the Civil War, President Abraham Lincoln deployed Union armies and navies against the Confederates who, despite being in rebellion, remained U.S. citizens. President Franklin Roosevelt directed operations against U.S. citizens fighting for Axis forces during the Second World War. President Dwight Eisenhower sent federal troops into Little Rock Arkansas when angry mobs of segregationists threatened to prevent African-American children from attending the city's public schools.