I’ve argued here that, after a dozen years, the AUMF’s definition of the enemy needs overhaul. So, similarly, does its explanation of what force Congress is authorizing. Again, lawmakers need not address all the hypothetical situations in which it might be proper to target American citizens. But nothing prevents Congress from amending the AUMF to provide explicit protections for Americans suspected of colluding with this unique enemy. Congress could, for example, instruct that in the absence of an attack or a truly imminent threat, the president is not authorized to use lethal force in the United States against Americans suspected of being enemy combatants. Congress could also define what it means by “imminent” so it is clear that lawmakers do not endorse the Obama administration’s preposterous interpretation of that term.
Is this really necessary? I doubt it. Even if he hypothetically could, it is highly unlikely that the commander-in-chief would use lethal force against anyone in the United States — citizen or otherwise — in this conflict. The Padilla precedent, as well as the arrest and military trial of Nazi saboteurs (including one American) after their capture here during World War II, demonstrate that, even in wartime, the executive respects our strong preference for due process in the homeland. But revising the AUMF in this way, while doing no harm to the war effort, might assuage Americans understandably perturbed by the Obama administration’s insouciance on the matter of targeted killings.
Nevertheless, it would be a mistake to extend such explicit protections to Americans situated outside the United States. American citizens do not carry the protections of the Constitution with them when they leave our country — especially if they leave at a time when Congress has authorized military force, and if they then voluntarily travel to enemy havens. American law and the writ of the American courts, on which we rely for our protection at home, do not apply outside the United States. And after all, what if our forces locate al-Qaeda emir Ayman al-Zawahiri along with some of his top aides in a compound in, say, Peshawar or Aden? Are we supposed to refrain from a lethal strike because there might be an American jihadist in the room with them?
Still, there are additional things Congress could do.