Sunday, October 2, 2011

The Killing of American Citizens During War

Last week, an American drone killed Al Qaeda leader Anwar al-Awlaki.  I must confess, I am not sure what to think about that.  Yes, Al Qaeda has done terrible things.  There is no debate on that score.  But killing people is not something that we should ever take lightly, no matter the justifications. 

The killing of Mr. Awlaki is particularly controversial, however, because he was an American citizen.  Here's an argument:
But a range of civil libertarians and Muslim-American advocates questioned how the government could take an American citizen’s life based on secret intelligence and without a trial. They said that killing him amounted to summary execution without the due process of law guaranteed by the Constitution.
I have a better question.  How could the government take anybody's life based on whatever they deem good intelligence and without any trial?  I must be going crazy, but this does not make any sense.  

Soon after the killing, Jack Goldsmith wrote a piece for the Times entitled "A Just Act of War." I was hoping the piece would lend me some clarity on this difficult issue. The title suggested as much. But Professor Goldsmith could do no such thing. 

Goldsmith concedes that “this fateful new step” – killing American citizens intentionally -- is fraught with dangers. He mentions executive overreach or mistakes as two such dangers. Yet he argues that President Obama is balancing these dangers admirably against larger security needs of the country. This is fine as it goes. 

The security needs are clear: Mr. Awlaki was “an operational leader of a Qaeda affiliate that had been involved in terrorist plots on American soil and . . . he was hiding in a country that lacked the capacity to arrest him and bring him to justice.” 

As for the notion that Mr. Awlaki was assassinated without due process, his response borders on silly: we’ve done this before. That is, we’ve assassinated people during times of war, and did not call it assassinations. Also, he was afforded process, since “[w]hat due process requires depends on context.” Then he explains that a federal judge last year (one!) left it up to the president and Congress to determine “military targeting issues” during wartime. 

Nope. He is not helping one bit. 

In fairness, however, I was not really holding my breath.

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