RUTHFULLY YOURS

I agree with brother Kevin that there is a certain bloodlessness in the lawyers’ arguments about the potential assassination of al-Awlaki. But in his admirable effort to get to something more fundamental than law, I think Kevin is over-lawyering this one.

As I argued the last time we went around on this, the conduct of war is more a political matter than a legal one. I won’t rehash the Supreme Court jurisprudence supporting the proposition that an American citizen who fights for a foreign enemy in wartime can be treated like any foreign enemy combatant.

A couple of non-legal points are worth highlighting, though.

First, during the nine years since Congress authorized military force after 9/11, we have not seen many assassinations of the kind Kevin fears — not even for alien terrorists, much less Americans. Sure, there’s always reason to be concerned when we’re talking about something as grave as taking life, but there’s no empirical cause for alarm regarding this country’s practices. Second, while we are not privy to the classified details, the assassination license on al-Awlaki is almost certainly not a green-light to kill him under any and all circumstances. Instead, I suspect, it is a license to deal sensibly with a very specific problem.

After the 1998 embassy bombings, the government had several opportunities to kill Osama bin Laden. It didn’t happen because, notwithstanding President Clinton’s post-9/11 claims that he had tried to take bin Laden out, he had actually given the CIA ambiguous instructions — i.e., Clintonesque instructions that would enable him to hang the CIA out to dry in the event of international condemnation over any civilian casualties. As the 9/11 Commission found, the agency was left unsure about what it was permitted to do in a situation either where it was theoretically possible to take bin Laden alive, or where killing/capturing bin Laden presented a high risk of collateral damage.

In addition, and quite apart from bin Laden, the issue of collateral damage (mainly, the killing of non-combatants) has vexed American military operations since Bosnia in the mid-Nineties. While our NATO allies are signatories to the 1977 Protocol I to the Geneva Conventions, we are not. Protocol I makes it harder to attack a militarily legitimate target if there is a material risk of damage to targets deemed not militarily legitimate (usually, civilians and civilian infrastructure).

Consequently, I suspect President Obama’s assassination authorization on al-Awlaki is intended to deal with the following not unlikely situation: Our military or intelligence agents get reliable information that high level al-Qaeda operatives are meeting in a location and that al-Awlaki is with them. Understandably, Obama does not want to find himself in Clinton’s shoes: namely, trying to explain why we passed up a golden opportunity to shoot a hellfire missile at a safehouse in which a group of jihadists was plotting to attack Americans. If we suffer another mass-murder attack, can you imagine having to explain to the next 9/11 Commission that you didn’t zap Zawahiri when you had the chance because Awlaki was standing next to him?

Here, it is worth noting Kevin’s concession, “If Awlaki were to be killed on a battlefield, I’d shed no tears.” He has nailed one of the great conundrums of the war: What is a battlefield — and who should get to decide, the courts or the commander-in-chief and military professionals? We are fighting non-state actors who (a) plot against us in safe havens where governments either can’t or won’t eject them, and (b) reserve unto themselves the right to strike anyplace (including civilian areas) at any time, in flagrant violation of the laws of war. For these reasons, I have to disagree with Kevin’s suggestion, when it comes to killing an American citizen terrorist, doing it in Pakistan or Yemen is no different from doing it in New York, Washington, or Topeka. The former are very different. They are areas where al-Qaeda has sanctuary, without which its capacity to project power against us (i.e., the thing that keeps the war going) would be greatly diminished.

Denying the terrorists safe haven is, in fact, one of the few justifications for the use of military force on which there is broad consensus, left and right. That’s why I continue to think candidate Obama’s position on al-Qaeda in Pakistan (i.e., if the Pakistani government won’t take care of terrorist sanctuaries, the U.S. must attack them) was far superior to candidate McCain’s (i.e., Pakistan is our great friend and ally, and we can’t conduct unilateral attacks in Pakistani territory).

So I don’t think killing Awlaki in an al-Qaeda safe haven is nearly as problematic as would be, say, killing him in a hotel in Paris. And it’s worth noting that, even in Pakistan, it has not been our practice to kill terrorists unless it can be done in a valid military operation — e.g., the aforementioned situation of top terrorists gathered together for a meeting. In many other situations, terrorists have been taken alive. We no doubt had grounds to kill rather than capture, but if the guy could be taken alive, if it was a simple matter to capture him, the preference is to do that and try to interrogate him for intelligence purposes. (To be sure, the Obama administration’s anti-Bush dementia on interrogations and military detention has complicated those options, leading to allegations that the president has sometimes opted to kill when it would have been easy to capture; but, left to their own devices, the military and intelligence community would still prefer to capture.)

I mention all this to set up the most important point (which readers may recognize as my favorite point): We are a political society, not a legal one. The executive branch typically has vast legal authority, but its exercise of that authority is hemmed in — thank goodness — by politics. As I’ve noted before, if five guys sitting in a circle pass a single marijuana joint around, each hand-to-hand exchange is actually a felony violation, punishable (under federal law) by up to 20 years’ imprisonment. Yet, no prosecutor would ever bring such a case. He would be fired and the president who appointed him would sustain a lot of political damage. The lesson is clear: People see the sense in having a weighty penalty available for drug-distribution offenses but expect the executive branch to use it responsibly.

I think the same principle applies here. In Ex Parte Quirin, the 1942 German-saboteur case, one of the terrorists was an American citizen and he was here to conduct terrorist attacks — which the government knew at the time he was apprehended. But, even though war had been declared, the government didn’t assassinate him or his German confederates. They were captured and given a military trial before being executed. Another U.S. citizen, Jose Padilla, was sent by al-Qaeda after 9/11 (i.e., after Congress authorized military force) to conduct terrorist attacks. He wasn’t assassinated either; he was arrested in Chicago, held for a few years as an enemy combatant, and eventually convicted in a civilian trial (albeit for terrorist crimes unrelated to the post-9/11 plot).

The Obama administration is not, by authorizing Awlaki’s assassination, green-lighting his killing under all conceivable circumstances. The administration, I suspect, is just making sure that if he’s found congregating in a sanctuary with other terrorists, we can bomb the sanctuary — we don’t have to forfeit a worthy military operation just because one of the terrorists happens to be an American citizen. But if he’s found under other circumstances, where there is no demonstrable military value in killing him, he will be captured, held, interrogated (one hopes), and tried — either by a civilian or (I would hope) a military court.

This seems like common sense to me. The unfortunate thing is that the assassination authorization should never have been made public. Clearly, the administration leaked it to underscore the president’s willingness to fight al-Qaeda aggressively. All the leak has done, though, is cause unnecessary legal headaches. If the administration had handled this top-secret authorization appropriately, chances are: Awlaki would, at some point, have been either killed or captured; the attendant circumstances would have made it obvious why the option chosen (kill or capture) was chosen; and no one would ever have thought to ask whether Obama had authorized his assassination.