I’ve written about the case of Anwar al-Awlaki before. I argued forcefully against the President’s assertion that he may kill an American citizen abroad with no due process or judicial review of any kind, on the basis of secret evidence. This seemed to me a terrifying precedent, and one that can be easily exploited and abused in a conflict with amorphous enemies, no defined battlefield, and no clear end.
Andrew Sullivan and Glenn Greenwald (of Salon) have been hashing this issue out over the last few weeks. Both have written extremely cogent, impassioned explications of their respective positions: Greenwald, against targeted killing of Americans; Sullivan, for targeted killing. I’ll focus on Andrew’s piece because it really made me think hard about my view on this. Here’s his apt framing of the issue:
Now the question before us is whether it is still right to kill an individual member of an enemy organization if he is an American citizen, fighting a war against this country and his fellow citizens in a foreign country which is a base of operations for al Qaeda, where the prevailing government, such as it is, is unable to capture or detain him and where it is effectively impossible for us to capture him and bring him to a military tribunal or civilian trial.
Andrew jokes about all the conditionals he had to attach to that sentence. But I think those conditionals are vital to understanding the issue, and they make his analogy of an American joining the Nazi army seem simplistic.
First of all, are we, and Awlaki, "fighting a war"? Sullivan describes this as a fundamental disagreement between he and Greenwald:
I believe this is a war, not some kind of lesser counter-terrorism operation, or a global criminal operation.
The argument as to whether to treat this conflict as a military engagement or a criminal/law enforcement one has been raging for years, and I’ve never understood people’s insistence on mutual exclusivity. It seems beyond obvious that the answer is sometimes it’s a war and sometimes it’s a criminal operation. And therefore the enemy is sometimes a war combatant and sometimes a criminal conspirator. These are not static conditions; one can morph from one context to the other simply by crossing a border. Awlaki is a war combatant. Faisal Shahzad, Awlaki’s one-time acolyte and henchman, is a criminal, and was just sentenced in a civilian court to life in prison for his attempted pre-meditated murder in Times Square. If Shahzad somehow managed to escape, as planned, to Dubai, would he stop being a criminal and turn into a war combatant susceptible to extra-judicial killing?
Surely Sullivan considers Osama bin Laden to be an enemy warrior that can be killed by the U.S. military. And I agree with him. But yet, bin Laden has been indicted by a federal grand jury, twice! The first time was in 1995 in response to an attack on a base in Riyadh that killed five Americans. And again in 1998 after the U.S. embassy bombings in Kenya and Tanzania. Now this was before the U.S. Congress gave the president explicit military authorization to fight al-Qaeda, so perhaps it could be argued that we were not in a state of war and so the president had limited military recourse at the time. I’d argue that bin Laden officially declared war on the United States in 1996, and therefore we were in a state of war whether we acknowledged it or not. Yet we still indicted him in 1998. I am asking for the same standard to apply to a U.S. citizen.
Another conditional that Andrew adds is that Awlaki is currently in a country (Yemen) that is a known base of operations for al-Qaeda, presumably to imply that this makes Awlaki fair game, or fairer game. So what if Awlaki leaves this "clear battlefield", as Sullivan calls it elsewhere, and goes to, I don’t know, Greece. Is Greece a battlefield in this war? It’s certainly not a base of operations for AQ. Or does Awlaki being there magically make it a battlefield, and therefore give sanction for the President to kill U.S. citizens there? Is the battlefield anywhere in the world that an alleged member of al-Qaeda happens to be? This mindset troubles me in principle, but it also seems incredibly ineffective. Here’s Osama bin Laden talking about his strategy a few years ago:
All that we have to do is to send two mujahedin to the furthest point East to raise a piece of cloth on which is written al-Qaeda, in order to make the generals race there to cause America to suffer human, economic, and political losses without their achieving for it anything of note other than some benefits for their private companies.
In the case of Awlaki, Andrew is right that there is no doubt that the man is a member of al-Qaeda and seeks to kill American civilians. Sullivan says he is "supportive of the military right to target an enemy leader in a war in a clear battlefield" regardless of that enemy leader’s nationality. But what if the enemy is not a high profile "leader" like Awlaki, but a more marginal member: a U.S. citizen who perhaps has no direct operational role in killing American civilians but provides AQ with more nebulous financial or logistical support? Someone for whom it’s not self-evident that they’re a bad guy. Someone without a Wikipedia page. As is often said, there’s no membership card for al-Qaeda. So can the president kill this American with no due process on the basis of secret evidence? Could Obama shield himself from oversight by invoking the state secret privilege, as he did last week after Awlaki’s father sued the administration to prevent his son from being assassinated? And nevermind marginal AQ members, how about innocents? Lest we forget that the U.S. has an impressive history of detaining and denying legal rights to hundreds of completely innocent people at Gitmo in the name of fighting the war on terror.
This is the point: How are we to stop the president from mistakenly targeting an innocent U.S. citizen for assassination? All we have to find is that this is theoretically possible. And the answer is the same for the mistakenly detained prisoners at Gitmo. We charge them in a court of law and give them access to judicial review of the evidence against them. This process of course doesn’t guarantee that an innocent isn’t ensnared, but it’s what we do, and it’s the best we’ve got.
My problems with Andrew’s list of conditionals is there is no concrete principle to hold on to here. Our enemy is sometimes a warrior, sometimes a criminal. They’re sometimes a leader, sometimes an accessory. Sometimes they’re on a battlefield, sometimes they’re not. Sometimes the host country can detain them, somethings they can’t. Tyranny is capricious law; and this policy still just seems too capricious for me.
To his credit, Sullivan says he is deeply troubled by the administration’s invocation of states secrets and its denial of any legal responsibility to account for its quite daring assertion of executive power. Andrew concludes:
So I remain in this very tight spot, I concede, supportive of the military right to target an enemy leader in a war in a clear battlefield, but deeply skeptical of the way in which the administration has publicly brandished and subsequently legally defended this position.
If Andrew wants the adminstration to legally defend its position, then call for Awlaki’s indictment and a formal request of Yemen for his extradition. Then, in the course of trying to apprehend him, if a cruise missile blows him to bits, so be it. But the form matters. And if you think Awlaki’s treason has stripped him of fourth amendment protection, then I’ll point you to Article 3, Section 3 of the constitution which spells out the only process by which a U.S. citizen can be accused and convicted of treason. By all means, start the judicial proceedings. I know it’s quaint, but U.S. citizens, even bad ones, even AWFUL ones, still have constitutional protections from arbitrary, unchecked executive power.