Benjamin Wittes, a national security law expert at the Brookings Institution, has posted an extensive response to my post earlier today about the debate surrounding Anwar al-Awlaki, the radical Al Qaeda propagandist with American citizenship who is supposedly hiding out in Yemen. The Obama administration has reportedly targeted al-Awlaki for death.
(Before I launch into all this, I want to thank Wittes for taking the time and energy to respond and engage. I've really enjoyed the back and forth.)
To recap: I accused Wittes of using a straw man argument to attack the position of the American Civil Liberties Union and the Center for Constitutional Rights, two groups that are suing in the hopes of getting a court to restrict the circumstances under which the government can order al-Awlaki's (or another citizen's) death.
Basically, I argued that it's unfair for Wittes to suggest, as I believe he did here, that the ACLU and CCR want the Obama administration to totally give up the option to use lethal force against al-Awlaki. After, all, the groups explicitly acknowledge that they believe the government can kill al-Awlaki as "a last resort to protect against concrete, specific and imminent threats of death or serious physical injury."
Wittes says that his argument isn't a straw man because (although he doesn't say this explicitly in his original post) he believes the ACLU/CCR definition of "imminent threats" is so narrow as to render the use of lethal force all but unimaginable against someone like al-Awlaki:
The government’s view of imminence, at least as I understand it, is not fundamentally temporal in nature; it is rooted, rather, in the idea that a chain of events is unfolding which, left uninterrupted, will ineluctably result in a particular outcome one desires to avert. There’s a lot of ground between that view of imminence and the one that the ACLU and CCR acknowledge as the only lawful situation in which the government could target Al Aulaqi: "a last resort to protect against concrete, specific and imminent threats of death or serious physical injury." If one truly accepts this highly-restrictive set of conditions as a necessary prerequisite to lethal force, then paralysis is precisely what one is proposing. What, after all, are the imaginable circumstances in which killing Al Aulaqi–who will never have a bomb strapped on his own back or wedged in his own underpants–will truly represent the last possible means of stopping a catastrophe? If, for example, one believes that Al Aulaqi played an operation role in the Christmas Day bombing attempt, there was no time at which killing him would have been the last opportunity to stop Umar Farouk Abdulmutallab, who could simply have been arrested or killed at the airport later. A rule like that is a rule that one can only ever kill the small-fry terrorists who carry out orders, never the big guys who send them. The big guys will never meet a strict understanding of imminence, and they go to places like Yemen precisely because they know they can avoid arrest there. So to preclude the option of force except in a temporally strict moment of imminent threat with respect to high-level terrorists camped out in ungoverned spaces is, as a realistic matter, to preclude the option of force entirely.
Aside from the idea that imminence (literally "the condition of being about to occur") can be anything but temporal, I actually think this is nearly convincing. I'd simply note that any non-zero chance, however low, of al-Awlaki meeting the ACLU/CCR definition of "imminent threat" would still seem to make Wittes' original argument unfair. From my reporting, I am certain that the ACLU and CCR can imagine circumstances where al-Awlaki could meet their standard of imminence at some point in the future; he may even have met that standard at points in the past. I still think it is unfair to suggest, as I believe Wittes has, that civil libertarians can imagine no circumstances in which it would be legal for the government to kill al-Awlaki without due process. It's just not true. In other words, even if the civil libertarians win (although they won't), the government would still have the option to use lethal force under certain circumstances. A hard-fought court battle would help define those—and give us all a better sense of the government and ACLU/CCR definitions of an "imminent threat." All that said, I have asked someone at the ACLU to help clarify their understanding of imminence, and when it could conceivably apply to al-Awlaki or someone like him. I'm interested to hear what they say.
Wittes has a number of other issues with my post besides his complaint about the "straw man" criticism. He rightly objects to labeling imminence "the key issue here." I meant to say that it's the key issue in determining whether or not the ACLU and CCR think the government can ever kill al-Awlaki. Obviously (as I note later in my post), if you believe, as the government does, that al-Awlaki is covered under the Authorization for Use of Military Force (AUMF), imminence doesn't even come up.
If you believe he's covered by the AUMF, Al-Awlaki would be a legitimate target regardless of whether he represented an imminent threat. But as Wittes notes, "civil libertarians do not accept this premise." (At least in part because AQAP did not exist on 9/11.) Moreover, Wittes' original hypothetical didn't ask readers to imagine that they agree with the government's determination that al-Awlaki is covered by the AUMF. It simply asked readers to accept that the government sincerely believes that al-Awlaki is an "operational" member of Al Qaeda in the Arabian Peninsula, and that the government is correct that it can't easily get to him. Those two things don't necessarily make al-Awlaki fall under the AUMF. That's still something that has to be hashed out—and it's certainly unfair to ask civil libertarians to simply concede the point on the way to arguing that their definition of "imminent threat" is so narrow as to be useless.
Wittes also objects to my characterization of the White House as "actively trying to kill al-Awlaki." Here's Wittes:
It just isn’t true that the government has made a simple decision to kill Al Aulaqi. The government, rather, has said clearly in court, both in briefs and in oral statements, that Al Aulaqi can turn himself in at any time and face no threat of death. What’s more, I would bet a considerable amoung of money that the internal authorization to use force against Al Aulaqi has some conditions attached to it. It doesn't say, I suspect, "Kill the guy even if he tries to surrender" or "Kill the guy even if a capture is manageable with minimal threat to forces." Rather, I would bet that force is authorized only in the absence of less lethal alternative means of neutralizing the threat he poses.
This seems like splitting hairs. The government has decided to kill al-Awlaki. It has already tried to kill him at least once. The lede of the Associated Press story about the Justice Department "considering charges" against al-Awlaki made clear that option was being considered "in case the CIA failed to kill him." They would love to kill this guy! The fact that the government may change its mind about killing al-Awlaki in the (extremely unlikely) event that he decides to surrender or the (also very unlikely) event he can be safely captured doesn't change that fact. "Reserving the option of lethal force" is simply not an appropriate description of what the government is trying to do when government officials have told multiple reporters at the nation's top news organizations that the government is actively trying to kill al-Awlaki.
Finally, Wittes' objects to my categorization of most views about al-Awlaki into two broad categories: (1) people who believe that he can be targeted under the AUMF, whether or not he's an imminent threat, and (2) people who believe he can only be targeted if he's an imminent threat in the sense that ACLU and CCR define "imminent." Wittes is right that these categories are overly simplistic, and offers five of his own:
- Targeting Al Aulaqi is legal because he is "part of" AQAP, which is co-belligerent with groups against which Congress authorized the use of force.
- Targeting Al Aulaqi is legal because he poses an imminent threat (using a broad conception of imminence) to the United States.
- Targeting Al Aulaqi is legal because both positions (1) and (2) are true.
- Targeting Al Aulaqi may or may not be lawful because, although no conditions of armed conflict allow his targeting, he may or may not pose an imminent threat to the United States (using a broad conception of imminence).
- Targeting Al Aulaqi is unlawful because no non-international armed conflict exists in Yemen that would permit his targeting, and Al Aulaqi poses no imminent threat (using a narrow conception of imminence) to the United States.
I assume Wittes associates ACLU and CCR with position #5, but the whole point of my criticism of his original post was that ACLU and CCR are actually closer to #4 than he thinks. I think any fair description of the ACLU/CCR position should acknowledge that they really do believe that Al-Awlaki could conceivably present an imminent threat (under their definition) at some point in the future. He may even have presented one in the past. In general, though, Wittes' taxonomy is a big improvement on my original, which was intended as an (admittedly inelegant) way of highlighting that the main item of disagreement is whether al-Awlaki is covered under the AUMF—not whether he can be killed at all.
Ultimately, I think the legal battle (which everyone knows the ACLU and CCR are all but certain to lose) is something of a distraction from the broader issues at stake in assassinating American citizens. I know from Wittes' exchanges with the American Prospect's Adam Serwer (especially this post) that he understands how civil libertarians view these broader issues. Here he is describing just that:
What is actually at stake is something more in the gestalt: The government may be right at a legal level... But hang on sec: You’re killing an American citizen and saying that no court can have anything to say about it! Are you nuts? This is, to lay the matter bare, a species of the "if the law says that then the law is an ass" argument, and I personally think it is more powerful than all of the arguments the ACLU and CCR make put together. [What the argument amounts to is that] the sum of several shards of even-consequential doctrine cannot be an absurdity. And the idea that the president has life-and-death power over a U.S. national is an absurdity.
Wittes of course concludes that the presidency should have this power (under limited circumstances) anyway, because a presidency "barred by law from attacking citizens even when those citizens make war against it and when it has no other available means of neutralizing them" is less scary than "a presidency with the power to kill its citizens, even under... very limited circumstances." But it's nice to see that he at least understands where civil libertarians are coming from.