Why the 'We're at War' Defense of Obama Is Unpersuasive

No one contends that America shouldn't find and kill its enemies. The issue is whether it's done within the rule of law.

No one contends that America shouldn't find and kill its enemies. The issue is whether it's done within the rule of law.

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As ever, Andrew Sullivan is linking to and engaging critics of his work. It's a rough and admirable discipline -- and this week, it means defending his Newsweek essay on President Obama. I complained that it put too little emphasis on civil liberties, executive power, and war. Sullivan was good enough to respond here.

Let's focus on this excerpt from his post:

In wartime, I believe the government has a right to find and kill those who are waging war against us, if it is impossible to capture them. I don't think wartime decisions like that need be completely transparent -- or can be, if we are to succeed.

This misstates the debate. Of course the government has the right, in wartime, to find and kill the enemy. At issue are the procedures by which we determine (1) that we are at war; and (2) who is waging war against us, and thus subject to being killed. The Constitution has a few things to say on the subject. It gives Congress the power to declare war. It guarantees due process to American citizens. And it lays out what must happen to convict an American of treason.

The Framers weren't averse to finding and killing our enemies. They just understood that a republic couldn't long endure if the head of state was empowered to indefinitely detain or kill anyone, at home or abroad, on the unilateral assertion that they were an enemy. The civil-libertarian critique of Obama is not that he is finding and killing Al Qaeda members. It is that by going to war without a Congressional declaration, putting American citizens on a kill list without due process, and signing an indefinite-detention bill, among other things, he is willfully and irresponsibly weakening the safeguards put in place by the Framers to prevent abuses of power; and that he is transgressing against the Constitution, statutes like the War Powers Resolution, and basic norms of justice, like the prohibition on holding people forever without charges or trial on secret evidence.

Sullivan writes as if Obama's critics demand that wartime decisions be "completely transparent," but that is an invented standard and misleadingly implies that Obama is invoking secrecy in limited circumstances out of wartime necessity. The reality is quite different. For example, the Obama Administration doesn't just assert that it is empowered to keep secret the American citizens on its kill list. It further insists that it needn't even make public the legal reasoning that ostensibly permits it to kill people without due process far from any battlefield.

What's confounding when arguing with Sullivan on these matters is that he has so eloquently expressed their gravity elsewhere. In his response to me, he states that "my primary issue has always been torture -- the cancer it introduces into our legal, moral and civilizational bloodstream." But "primary" is doing a lot of work there. Take indefinite detention. In December 2011, just one month before President Obama signed the NDAA into law, here's what Sullivan wrote (emphasis added):

...the US Senate has thrown its weight behind gutting the core, most basic freedom upon which all others follow: habeas corpus. It has endorsed the notion that the government can do whatever it likes to any citizen it merely suspects of being involved of terrorism. It is a hole through which the entire framework of the constitution could disappear.

On September 22, 2008, Sullivan wrote this (emphasis added):

In the last few years, we have seen the executive branch declare itself outside the law - in prosecuting a war on terror. The law against torture has been suspended. The balance between the executive and legislative branch has been dismissed by signing statements and the theory of the unitary executive. The executive has declared its right to suspend habeas corpus indefinitely, to tap anyone's phones without court warrants and to detain and torture anyone it decides is an "enemy combatant." In that sense, we have already left the realm of constitutional government in favor of a protectorate outside the law promising to keep us safe (but never from itself).

None of this means that Sullivan can't support Obama in 2012 if he is pitted against a Republican whose positions are just as bad or worse -- a depressingly plausible possibility. But if, by one's own logic, a president is helping to "open up a hole through which the entire framework of the constitution could disappear," then for goodness' sake, it's long past time to stop lavishing him with praise like "his re-election remains, in my view, as essential for this country's future as his original election in 2008." Or asserting, "It's really up to all those who backed Obama in 2008 to give him the breathing space to succeed. We are the ones we've been waiting for." It's time to fully confront the fact that, even if you regard him as the better candidate among the two nominees from the major parties -- a defensible assertion, to be sure -- it is nevertheless discordant to revel in his strategic acumen, praise his character, and focus attention on his least persuasive critics, even as he breaks campaign promises, violates the law, and sets precedents you'll regard as reckless should he lose the White House to Newt Gingrich.

Better than most, I grasp how eloquent, persuasive, and committed to principled stands Sullivan can be. So I desperately want him angrier at the bipartisan assault on civil liberties and limits on executive power that this president inherited, embraced, and in some ways deepened. Doing so is impossible so long as Sullivan remains "proud" rather than conflicted to support Obama's reelection -- and especially so long as Obama's transgressions are is graded on a curve determined by the GOP's most odious impulses, rather than how damaging a precedent Obama's actions set.

Image credit: Reuters