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A Response to Kevin Jon Heller

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Saturday, September 4, 2010 at 12:39 PM

Thanks to Kevin Jon Heller for his thoughtful post taking issue with my hostage-taking analogy. Readers will be shocked to learn that I disagree with him. Let me briefly respond to both of Heller’s major points. Heller argues, first, that:

There is no comparison between physically taking someone hostage and providing material support for terrorism or conspiring to commit a terrorist act, the crux of the allegations against al-Alauqi.  We allow the “targeted killing” of a hostage-taker without due process only because the threat is so imminent.  If law-enforcement intercepts an email from someone telling a friend he is going to take hostages the next day, we don’t permit a sniper to take him out as he is sitting at his computer.  Instead, we require the police to arrest him pursuant to a warrant if he is in his dwelling or without a warrant if he is in a public place.  Similarly, if the hostage-taker gets what he wants and lets the hostages go (or, for that matter, kills them), a sniper can’t simply take him out the next time he surfaces in public. In each situation the hostage-taker, no matter how evil or potentially dangerous, is still entitled to due process.

That does not mean, of course, that a terrorist situation could not be sufficiently imminent to justify a targeted killing.  But the lawsuit acknowledges that possibility, as the quote from the op-ed indicates.  Wittes’ real argument, therefore, is not that targeting al-Aulaqi is in any way similar to killing a hostage-taker while he is holding hostages, but that we should dilute the concept of imminence to the point where it ceases to have any meaning.  After all, every terrorist plot involves “great secrecy,” and there are always problems getting foreign governments to cooperate an anti-terrorism efforts.  So Wittes’ is simply arguing that because terrorism is difficult to fight, any American citizen suspected of being involved in terrorism should be targetable anywhere, anytime, without any due process whatsoever — a policy that has no basis, analogically or otherwise, in the Constitution (to say nothing of international human-rights law).

Heller stacks the deck a bit here by limiting what Al-Alauqi is suspected of doing to material support or conspiracy—though I, to be fair, referred to conspiracy as well. My understanding, which could be wrong, is that Al-Alauqi eventually made the target list because he had come to play an operational leadership role in terrorist events. So for starters, this is far from the case of the ubiquitous little old lady in Switzerland.

That said, Heller’s point that imminence is key is important and I don’t mean to trivialize it. And I acknowledge that I am arguing for an expansion of that concept—at least in the temporal sense.

And that said, I think Heller is wrong that I’m trying to dilute the concept of imminence to the point of meaninglessness. Because I am absolutely not arguing that “any American citizen suspected of being involved in terrorism should be targetable anywhere, anytime, without any due process whatsoever.” Rather, I am arguing that a use of military force targeted at an individual is legally justified where either (1) the individual is covered by the AUMF, reasonably interpreted, or (2) the individual poses a threat of such magnitude and immediacy that his killing would be an act of self-defense under international law. And critically, I am arguing for the hostage-taking analogy only in those situations in which law enforcement remedies are unavailable because of failed- or failing-state conditions that make arrest impossible. In other words, I would not argue that someone in London or New York is the equivalent of a hostage-taker, precisely because one can arrest him if one can locate him. That person is much closer to the guy Heller describes who writes an email expressing a desire or intent to take hostages. In Yemen, by contrast, viable options may not necessarily exist. And the presence or absence of viable law enforcement options seems to me critical to the discussion, both as a matter of law and as a matter of comity, prudence, decency, and values.

Heller also dismisses my point that Al-Aulaqi has a remedy at his disposal: surrender. The argument, he writes,

uncritically presumes that al-Aulaqi would receive due process if he turned himself in.  Wittes is probably right that he would not simply be killed if he presented himself to, say, the U.S. consulate in Yemen.  But it is certainly conceivable that he would be quietly “disappeared” — taken to one of the CIA’s many black sites and never heard from again.  Even if he wasn’t, there is little chance that he would be tried in a civilian court. Instead, he would be deemed an “enemy combatant,” taken to Bagram or Guantanamo, and eventually — some years later — tried in a military commission.  And what would he be charged with? Conspiracy? Material support for terrorism?  As scholars have explained ad nauseum, those are not actually war crimes. So Wittes’ “solution” to al-Aulaqi’s due-process right not to be summarily executed is for al-Aulaqi to subject himself to a system that would itself violate his right to due process.

Leave aside that the CIA’s secret prisons program is a thing of the past and that military commissions are not available for trial of U.S. citizens. Heller is right that if Al-Alauqi turned himself in, he might not receive a civilian trial. But that’s not dispositive of anything. The Supreme Court made clear in Hamdi that a U.S. national in principle can be detained long-term as an enemy combatant. Were this to happen to Al-Aulaqi, he would—in contrast to the non-citizen—have undisputed access to habeas review wherever the government chose to hold him. So he might have to vindicate his due process rights through that mechanism, rather than through the criminal justice system. But that’s hardly the deprivation of due process as a condition of avoiding summary execution to which Heller objects.