Second, the senator is right that the government’s treatment of its own citizens is a serious issue. That also includes American citizens situated outside the United States, where American law does not control.
Until fairly recently, it was generally assumed that the Constitution does not have extraterritorial application. American drug dealers in Mexico, for example, have no Fourth Amendment protection from being searched by American agents working with Mexican police — after all, a U.S. court has no jurisdiction to issue a warrant to search property outside the U.S. Indeed, the Fourth Amendment does not even protect Americans from being searched at the U.S. border. Nevertheless, because our government’s treatment of U.S. citizens is a matter always deserving of careful consideration, the courts have resisted a bright-line rule that the Constitution and their own writ never govern outside our borders.
Yet, as problematic as it may be to claim that the Constitution is completely unavailing outside our borders, even worse is Paul’s populist claim that the Constitution fully applies against our government outside our borders. Does anyone really believe an American in Yemen has the same due-process rights as an American in Peoria?
Moreover, there is a gaping hole in Paul’s contention that American citizens are deprived of due process if lethal force is used against them based on the commander-in-chief’s determination that they have joined enemy forces — a flaw I have pointed out before but for which Paul evidently has no answer.
Contrary to what the senator suggests, due process has never been thought to equal an entitlement to a full-blown criminal trial in every situation — certainly not by the Framers, and not by the Supreme Court. Due process is merely the process that is due under the circumstances. Here, we are operating under a congressional authorization for the use of military force overwhelmingly enacted days after the 9/11 attacks and reaffirmed several times since. In the AUMF, lawmakers clearly left to the president’s judgment the determination of who fits the category of enemy against whom force is authorized.
Of course, Congress did not authorize the president to take action against anyone he arbitrarily decided to strike. Force, instead, was authorized against
those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [Emphasis added.]
That is broad, but it is not boundless. Al-Qaeda planned and committed the 9/11 attacks, and there is abundant evidence that Awlaki himself at least aided if not planned them; both al-Qaeda and Awlaki have been immersed in subsequent plots and acts of terrorism against the United States.
The AUMF does not require these conclusions to be proved in court. It authorizes the president to draw them and to use force accordingly. That is not a lack of due process. The Constitution accommodates the laws of war — they are the rule of law in wartime. The president is not on a unilateral adventure here as he was in the unauthorized Libya war.
If Senator Paul truly believes American citizens are unduly threatened, the constitutional path is clear: He should propose legislation repealing the AUMF. Without the AUMF, the laws of war would not be operative — at least in the absence of an attack or threatened attack on the United States. We would be back to a pre-9/11 state in which terrorism was strictly a law-enforcement matter. Senator Paul would then have his wish: It would be unlawful to target American citizens with lethal force. But . . . we would also no longer be permitted to conduct the military operations against jihadists that have prevented a reprise of 9/11.
If the senator, despite the utter dearth of substantiating evidence, really thinks the president is so likely to kill Americans capriciously that it is worth forfeiting our capacity to strike al-Qaeda militarily, he should say so. If he’s not willing to be accountable for this choice, however, he should knock off the filibuster circus and stop making it harder to fight jihadists who are trying to kill our fellow Americans.