The President’s Power to Kill Enemy Combatants

Michael Stokes Paulsen, an estimable professor of constitutional law of whom I’ve written before, takes a scholarly swing at the pantywaists who object to the killing of enemy combatants who happen to be U.S. citizens. Here’s the gist of Paulsen’s argument:

First, is there a constitutionally authorized state of war? The answer is yes: The Authorization for Use of Military Force (AUMF) of September 18, 20011 is a legally operative constitutional authorization of war.

Second, was al-Awlaki a legitimate military target—an enemy combatant falling within the scope of this war authorization? The answer, again, is yes: Anwar al-Awlaki was a person who fit within the scope of the AUMF’s authorization for use of force against enemy combatants.

Third, are decisions about targeting and killing enemy combatants within the President’s exclusive Commander in Chief Clause power to wage and conduct war, when authorized? The answer is a resounding yes: The President might legitimately and lawfully judge Anwar al-Awlaki to be an enemy combatant, covered by the September 18, 2001 AUMF.

Fourth, is al-Awlaki’s citizenship relevant?  Here, the correct answer is no—or at least it should be “no”: The Supreme Court wrongly seems to think that citizenship is, sometimes, relevant. The correct answer is that, in terms of the constitutional application of the war power, the citizenship of an enemy combatant, fighting for a force or power with whom the United States is at war, is not relevant, so long as that combatant falls within the description of persons or groups subject to the application of the war power.

Fifth, does there exist in our constitutional system what might be called a “Due Process of War” Clause that requires further judicial authorization—or some form of “kill warrant”—as a precondition to targeting an enemy combatant? The answer is no, or again, it should be “no”: The same Supreme Court decision that wrongly seems to make citizenship relevant also seemingly implies, equally wrongly, that targeting decisions are subject to judicial review or some other form of judicial legal process, at least in the case of U.S. citizen enemy combatants.

Sixth, what is the relevance of international law? The answer is that international law is primarily a political and diplomatic constraint on war-waging,4 not a domestic legal constraint that can alter or displace the constitutional powers of the President as Commander in Chief. [“Drone On: The Commander in Chief Power to Target and Kill Americans,” 38 Harvard Journal of Law & Public Policy 43 (2015)]

If you know of Paulsen and his writings, you know that he despises leftists like Barack Obama. Accordingly, Paulsen ends with this:

What if the nation has a poor, ineffectual Commander in Chief serving as President? Sadly—and with all due respect—that is the situation in which the United States finds itself today. We have, right now, an exceedingly poor Commander in Chief serving in the office of President of the United States, arguably the weakest such commander in more than 100 years. The current occupant of the office appears to lack the essential qualities of a good Commander in Chief: decisiveness, moral clarity, consistency, conviction, political and personal acumen, diplomatic savvy, strategic sense and vision, resiliency, thick-skinned moral toughness, and good old-fashioned guts. As I write, the U.S. President is not a strong person, and is not a strong Commander in Chief. The consequences in terms of world events, lost wars, invasions, and deaths, are evident for all to see and have been much commented upon by others.

My point here, however, is that none of this goes to the existence of constitutional power. As poor as the Commander in Chief may be at any given point of time, in terms of personal qualities and abilities, he or she always retains the constitutional powers of the office. These include the power to target and kill enemy combatants in time of war, including U.S. citizens, by available weapons technology when the President determines that they are active enemy combatants engaged in war against the United States. That this is a fearsome and important power is only another reason why it is so vitally important to elect a person with the requisite abilities and character to perform so awesome a task as serving as Commander in Chief of U.S. military forces in time of constitutionally authorized war.