It is not possible to wage an effective war against an international terror network while simultaneously foreclosing the possibility that American traitors will be killed in military operations.
By Andrew C. McCarthy:
If a plane full of 200 American citizens is hijacked by foreign jihadists, the law does not tell us whether the president should shoot down the plane or let it be plowed into a skyscraper and kill 3,000 American citizens. It is the kind of excruciating decision that war makes necessary. Legal niceties do not tell us how to resolve it.
That is the problem with our debate over the treatment of U.S. nationals who join the enemy’s forces in wartime — most urgently, over the targeted killing of our fellow citizens. We want the legal answer. But the legal answer is not going to help us. Under the Constitution, Americans who join the enemy may lawfully be treated like the enemy, which includes being attacked with lethal force. That, however, tells us only the outer limits of what is permissible. It does not tell us what we need to know: What should we do?
The government’s war powers must be boundless, at least in theory. We must be able to marshal all our might to repel any conceivable existential threat. Yet the Constitution, the sole legitimate source of the government’s power to levy war, is, quintessentially, the citizen’s protection against aggression by that same government. Thus, the tension between government’s war powers and the citizen’s fundamental rights is a conundrum. It simply cannot be resolved with finality.
Neither side of our debate is satisfied with that. We want fixed rules. But fixed rules work only if they answer every conceivable hypothetical. So the debate lurches inexorably to worst-case scenarios.
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— Andrew C. McCarthy is a senior fellow at the National Review Institute and the executive director of the Philadelphia Freedom Center. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy, which is published by Encounter Books.