What Could Go Wrong?

My post a few days ago on “The Killing Memos” was intended to draw attention to liberal hypocrisy about the Obama Administration’s often aggressive actions against terrorists, such as expanded drone attacks culminating in the killing of U.S. citizen Anwar al-Awlaki.  If the Bush Administration had done this, the Occupy Wall Street folks wouldn’t be looking around for a coherent theme.  It prompted a note from one of my good hearted and serious liberal friends—oh what the heck, no reason to be coy: it was Joel Mathis, who writes and blogs from Philadelphia—who said that he thinks these kind of acts are just as problematic under Obama as he thought they were under Bush.  I allowed as how I actually have my own reservations on this point, too, and might prefer that Congress pass positive legislation about things like targeted killings of treasonous U.S. citizens, as well as drone attacks overseas, rather than rely on Justice Department lawyers to craft legal briefs.  Always good to have multiple branches of government together on controversial matters like this.  What could go wrong?  Plenty.  Stay tuned.

Joel noted his reservations about this in a column with his frequent conservative sparring partner Ben Boychuk.  Yesterday Richard Cohen also registered his reservations in his Washington Post column:

The Justice Department memo and its acknowledgment of Awlaki’s citizenship are ample proof that the Obama administration realized it was crossing a line. But it did so on the sneak — a memo, still secret, written by two lawyers you and I never heard of.

We live in a soft police state. It’s not a film-noir one, based on ideology and punctuated by the crunch of hobnailed boots, but one created in response to terrorism and crime. . .  There’s no Orwellian Big Brother, just countless little ones, all of them righteously on the lookout for the bad guys. It’s necessary, I suppose. It will be abused, I don’t suppose.

This may not be entirely sensible, but good for and Richard Cohen and Joel Mathis for being consistent, unlike the Code Pinkos who are clearly just partisan apparatchiks.

The dilemma for a responsible president in this case is simply this: Congress might well be persuaded to pass a statute explicitly authorizing the killing of people like al-Awlaki.  But once there is a positive statute, there is a target for litigation.  (I’ll leave for the lawyers among our readers whether there’d be a problem of standing to bring a suit challenging such a statute.)  And I can easily imagine our courts striking it down as a violation of due process—strict scrutiny and all that.  And then where would that leave a president faced with a menace like al-Awlaki?  Maybe better, in the real world, to do it the way we are right now, even if it is untidy.

No, not this John Locke you idiot. . .

In other words, this is another indication that John Yoo was right all along.  But of course if you read Yoo’s books and articles, you will soon see that all he was saying was that John Locke was right all along.  This is not the first time, nor shall it be the last, when we’ll be drawn back to chapter 14 of Locke’s Second Treatise, discussing executive prerogative: “Many things there are which the law can by no means provide for. . . [I]t is fit that the laws themselves should in some cases give way to the executive power. . .”

This culminates in Locke’s one-sentence definition of prerogative: “nothing but the power of doing public good without a rule.”  Problem: who is to judge whether the executive has acted rightly?  How shall that judgment be made?  What could go wrong here?

This John Locke is never Lost.

Locke gives two answers that don’t quite deliver a firm, bright line answer.  The first one is the most accessible: the people shall judge.  Let’s put it this way: When Nixon invoked the idea of executive prerogative with his famous statement, “If the president does it, it’s not illegal,” the American people were not amused.  On the other hand, it became apparent in 1987 that Americans were not about to turf Ronald Reagan out of office for the legal mistakes made in the Iran-Contra scandal, or Bill Clinton the Lewinski scandal in 1999, which is one reason both scandals died out.  (There’s an obvious distinction between these two latter cases that explain why one went all the way to impeachment while the other did not, but you can draw that for yourself.)

Here’s Locke’s more elegant version of the problem (quoted out of order):

The old question will be asked in the matter of prerogative: But who shall be judge when this power is made right us of? . . .   The people, therefore, finding reason to be satisfied with these princes whenever they acted without or contrary to the letter of the law, acquiesced in what they did, and without the least complaint let them enlarge their prerogative as they pleased, judging rightly that they did nothing herein to the prejudice of their laws since they acted conformably to the foundation and end of all laws—the public good.

But of course we disagree vehemently about “the public good,” and the ACLU’s absolutist position that the public good requires a punctilious adherence to due process is not an insensible argument.  And Locke seems to admit in the sequel that it won’t necessarily do to put such matters to a simple majority vote.  He ultimately (though a little bit obscurely, so I won’t quote it) repairs to a hint of the right of revolution such as is later found in the Declaration of Independence.  While this may be theoretically right, as a practical matter it leaves us where we are right now: with huge, unresolvable uncertainty.

And that’s where is it going to remain.  It is simply not possible to find the bright lines here.  It is significant, though, that there is almost no one saying that al-Awlaki didn’t deserve his fate, and I take the concern that its legal basis is problematic as a sign of political health, and not a sign that we’re actually in any danger of becoming an actual police state.  That’s where Cohen lost me.

In other words, if Locke were reviewing the situation right now, I think he’d approve of the Obama Administration’s course on this. And so, back to Yoo you.