As far as I have seen, one’s overarching vision about how the US should conduct itself in the conflict with al-Qaeda determines one’s view on the killing of Anwar al-Aulaqi. Those viewing al-Qaeda as a criminal enterprise and favoring a law enforcement approach are likely to view the al-Aulaqi killing as unlawful assassination, the presidency overstepping its bounds, and yet another affront to a clearly laid out constitutional order.
In contrast, those viewing al-Qaeda as combatants in an armed conflict against the US will see the al-Aulaqi killing as falling in line with the dictates of the laws of armed conflict; the rules of necessity, distinction, and proportionality having been satisfied al-Aulaqi’s killing is both lawful and legitimate. There is also the possibility of viewing the conflict with al-Qaeda as a hybrid, seeing the need for using elements of both approaches, in which case it’s a tossup as to how to interpret al-Aulaqi’s killing. I’d place myself in the hybrid category.
Thus I was interested in reading views from multiple perspectives. Glenn Greenwald expresses outrage at what he views as a violation of core 5th Amendment due process guarantees; Jason Kuznicki expresses similar concerns, highlighting a Ryan Alford piece at Cato Unbound. From this perspective, there is nothing less than the danger of tyranny. Kenneth Anderson believes the US is on solid ground in targeting al-Aulaqi, concluding by pointing to distinctions Benjamin Wittes highlights at Lawfare. To quote verbatim Anderson’s summation of the points relevant in the al-Aulaqi case:
- taking up operational roles in armed conflict against the United States;
- fleeing to places beyond the bounds of law enforcement that might serve to arrest Al-Aulaqi if he had been in the territorial US;
- the existence of robust domestic legal authorities for undertaking lethal action even against a US citizen (it is not as if this was not understood as a possibility in the Cold War);
- acknowledgment that the US was willing to consider ways to accepting surrender and coming into custody that would allow judicial review; and
- a lengthy judicial opinion that refused to take a simplistic view of due process in this very case (in either direction, simply targetable combatant or US citizen denied due process) irrespective of whether one thinks the outcome correct or not.
I think Anderson and Wittes have the better argument. Yes, it would be better if the President and Congress constructed a more robust architecture to fit these actions under, preferably with the participation of the judiciary (as Wittes argues). I think it would be more legitimate to have the public discussion and legislation on the matter. But clarifications and additional safeguards with respect to these powers have not been forthcoming. That more explicit grants of authority and defined boundaries for the presidency would be more legitimate does not mean that the president’s actions are illegitimate. Either the right of the US to self-defense or the Authorization for the Use of Military Force provide backing for targeting those targeting the US. As Obama made clear in his Nobel lecture,
But as a head of state sworn to protect and defend my nation, I cannot be guided by [Martin Luther King Jr. and Mahatma Gandhi] their examples alone. I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: evil does exist in the world. A non-violent movement could not have halted Hitler’s armies. Negotiations cannot convince al Qaeda’s leaders to lay down their arms. To say that force is sometimes necessary is not a call to cynicism – it is a recognition of history; the imperfections of man and the limits of reason.
I agree with those who argue if al-Aulaqi wanted to exercise his rights and challenge his status as a Specially Designated Global Terrorist, he needed to surrender. Al-Alaqui’s father attempted to challenge the designation on his son’s behalf. The judge dismissed the case, finding that the father did not have standing to bring the case. The judge remarked (emphasis in original, pdf),
All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities. Anwar Al-Aulaqi is thus faced with the same choice presented to all U.S. citizens.
Al-Aulaqi made his choice.
