Obama sounds more like Bush every day. In doing so, he is fulfilling part of his destined role in the American system of divided powers: holding onto the very executive powers he campaigned against. This is familiar territory; before he was like a kid criticizing his parents. Now he’s the parent, who has quickly figured out that mom and dad knew something.
The war powers are rightly expansive. It is a misnomer and exaggeration to talk about the President’s right to “kill Americans” when these Americans are born of foreign parents merely passing through. The dude in Yemen and most other “American” al Qaeda have nothing in common with any of us. And, more important, they’ve picked a side and don’t deserve special treatment on account of it. No one thought we had to give some special treatment to Americans found in Nazi uniforms (other than to try them for treason).
As for the domestic use of drones or other war powers, this is simply logical. Wars do not somehow end at our borders. It’s in fact kind of weird that so much of our military operates offensively and overseas; it’s supposed to exist chiefly to defend American territory. Until 1900 that’s chiefly how it was used. It’s conspicuous absence in that role today is why we have two Departments of Defense, one de facto and with the strange name, “Department of Homeland Security.”
So the use of war powers domestically is simply a return to historical use of the military. No one back in the day thought a President would need a court order to open fire on uniformed enemy Japanese or Germans infiltrating America in WWII. I concede that it gets a little trickier in the anti-terrorist arena. Its best analog is probably the Indian Wars or the pursuit of saboteurs in WWI and WWII. This type of war and this type of enemy involves elements of old-fashioned spying, ordinary crime, and traditional enemy combatants. He wears civilian clothes often, blends in, but carries out acts of war. We often don’t know his identity other than through a combination of intelligence-gathering and law enforcement investigations.
With this kind of enemy, the risk of mistakes are comparatively higher than in the case of a uniformed enemy. What if the al Qaeda member is in a car and you “know” it because of signals or other intelligence? What if you get it wrong? It is discomforting how often civilians are whacked mistakenly in Iraq and Afghanistan. It would be worse if this feature of the war were brought home. After all, look at how the Southern California cops were lighting up random civilians last month in the search for renegade cop Chris Dorner.
It all comes down to the central question: do you think we’re in a “real war” with al Qaeda? I think we are and should not forget it, in spite of these peculiarities of a terrorist threat. And that means we should dispense with habeas review for military tribunals, handwringing about GITMO, and make a liberal use of drones. Obama is unfortunately schizophrenic on this issue, forgetting to beef up embassies on 9/11, but embracing an even more expansive and aggressive concept of presidential power than prevailed during the Bush administration. But my principles and my notions of legality do not shift simply because an anti-American moron is currently our President.
The whole situation has elements of comedy. Obama ,who would shut down GITMO and rail against Bush so self-righteously in 2004 and 2008, has not only done none of these things, but has taken this rather broad take on the use of missile-armed drones.
While I defend so little that Obama has done, I do defend his use of drones and SEALs to get bin Laden, and he does have the same legal rights as Bush or any president had, including the power to identify, separate, and terminate people in al Qaeda.
Obama’s numerous other demerits and penchant for aggrandizement are just reminders that we should be pretty darn careful whom we give that power to. And obviously we should always be jealous of our own countervailing powers–to vote, to speak, to bear arms–if those presidential and other federal powers should ever be turned against real Americans.