RUTHFULLY YOURS

Senator Lindsey Graham says really dumb things from time to time, but when I read this profile of the apparently soon-to-be GOP presidential candidate by the Federalist’s Ben Domenech, I assumed that he must have been misquoted. Sure enough, though, Mr. Domenech provides a supporting link to a Washington Post news account which reports that, this past weekend, Senator Graham asserted:

If I’m president of the United States and you’re thinking about joining al-Qaeda or ISIL [Islamic State], I’m not gonna call a judge. I’m gonna call a drone and we will kill you.

Even for those of us who recognize the government’s necessary national security powers, the question of killing Americans is an excruciatingly difficult one. It is not fit for bombast.

Our law does provide that an American citizen who joins the enemy may be treated like the enemy: lethal force may be used against him and he can be detained as an enemy combatant under the laws of war. There is an obvious reason for this: if it were wartime, and if enemy forces were conducting or about to conduct forcible operations against our troops or our citizens, we would have to be able to quell the threat with whatever force was necessary. The government clearly could not be precluded from attacking the enemy in that situation by the happenstance that one or more of its operatives was an American citizen – that would kill the innocent to protect the guilty.

That, however, is the extreme case. Given that the Constitution is not a suicide pact, our national security law must be able to respond to extreme cases.

In the “normal” case – bearing in mind that it is unusual, but far from unprecedented for Americans to join enemy forces – Americans are only targeted with lethal force if they are colluding with the enemy outside U.S. territory. Moreover, such targeting should happen only under circumstances where killing, rather than capturing, is the better military option. That is why, despite the fact that our forces have been conducting combat operations outside the U.S. for nearly fourteen years in the war against al Qaeda, only a handful of Americans have been killed or captured and detained as enemy combatants overseas.

Inside the territorial United States, we do not even target suspected alien al Qaeda operatives with lethal force, much less American citizens. Again, that is not to say the government could not do so if (a) jihadists were carrying out or about to carry out an attack on our soil, and (b) the application of lethal force was the most sensible way to stop them. But of course, even police are permitted to use lethal force in life-or-death situations, and national security forces would have greater latitude in wartime while conducting combat operations against the enemy – especially if those operations had been authorized by Congress.

Still, on American soil, our law-enforcement and national security agents do not kill when capture is a plausible option. And while there is judicial authority for the proposition that a captured American could be detained as enemy combatant and subjected to a military commission trial, the legislation on the books for current conflict does not permit American citizens to be tried by military commissions. While they could be detained as enemy combatants, they would be permitted to challenge their military detention in court, and they would eventually have to be tried, if at all, by a civilian court with all the applicable due process protections.

No one, it should be emphasized, may legally be detained in the United States, let alone killed by government use of force, for “thinking about joining” a terrorist organization – no American and no non-American.

Actually joining al Qaeda or the Islamic State would warrant a prosecution for terrorism conspiracy, even if it were not accompanied by an action furthering the conspiracy. Inside the United States, however, it is inconceivable that actually joining a terrorist organization would warrant being attacked by lethal force unless there were exigent circumstances such as participation in an ongoing terrorist attack.

A president who authorized the killing of American citizens or aliens inside the United States on mere suspicion of joining al Qaeda or ISIS would be impeached and removed from office, and hopefully prosecuted.

People say all sorts of over-the-top things in campaigns. What Senator Graham said, though, is reprehensible.

People on the national security right are trying to make a persuasive case for preserving the law-of-war counterterrorism paradigm and national security surveillance authorities. On the other side, the left and libertarians are making vigorous arguments – arguments that resonate with many Americans in a time of presidential lawlessness – that the executive branch cannot be trusted to wield these powers soberly, responsibly, within the bounds of the law, and with effective oversight by Congress and the courts. Those arguments are helped enormously when Senator Graham – a media fixture presented as a leading Washington champion of executive war powers – cavalierly announces that, as president, he would have people killed if they even think about joining terrorist organizations.

With the terrorist threat intensifying, with the Islamist regimes that abet jihadists on the cusp of a ruinous regional war and a nuclear arms race, I figured the nation would not be receptive to Rand Paul’s presidential campaign, with its anti-government extremism and Obama-like tendency to blame American policies for Islamist aggression. But I’m starting to think a Lindsey Graham campaign may be the best thing that could happen to Senator Paul.