The Awlaki case has led many conservatives into dangerous error, as has the War on Terror more generally. That conservatives are for the most part either offering mute consent or cheering as the Obama administration draws up a list of U.S. citizens to be assassinated suggests not only that have we gone awry in our thinking about national security, limitations on state power, and the role of the president in our republic, but also that we still do not understand all of the implications of our country’s confrontation with Islamic radicalism. The trauma of 9/11 has deposited far too much emotional residue upon our thinking, and the Awlaki case provides occasion for a necessary scouring.
Contra present conservative dogma, the Constitution has relatively little to say about the role of the president in matters of what we now call national security, which is not synonymous with combat operations. What the Constitution says is this: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” That is all. Upon this sandy foundation, conservative security and legal thinkers have constructed a fortress of a presidency that is nearly unlimited or actually unlimited in its power to define and pursue national-security objectives. But a commander-in-chief is not a freelance warlord, and his titular powers do not extend over everything that touches upon national security. The FBI’s counterterrorism work, for example, is critical to national security, but its management does not fall under the duties of a commander-in-chief; it is police work, like many of the needful things undertaken in the War on Terror. The law-enforcement approach to counterterrorism is much maligned in conservative circles where martial rhetoric is preferred, but the work of the DOJ, FBI, NYPD, etc., is critical. It is not, however, warfare.
A commander-in-chief does not have unilateral authority to invade foreign countries or to name belligerents, and it is clear that the Founders did not intend to give the president that kind of unchecked war-making power, much less to compound it with unchecked domestic police and surveillance powers, which is why the power to declare war resides with Congress rather than with the president. Our Constitution, as in all things, relies upon checks and balances when it comes to the conduct of war. It is significant that the final powers — to declare war, to ratify a peace treaty, to punish treason — do not rest with the president, but with Congress.
Even if you're a liberal not disposed to reading National Review, I think this is a pretty important piece to read and revisit.