Adam Serwer of the American Prospect has a typically thoughtful post on the government’s Al Aulaqi brief, notable for his taking the government’s arguments seriously even in dismissing them. His rather nuanced bottom line is the following:
I think it’s really easy to get sucked into acquiescing to this kind of authority out of the belief that terrorists are really scary, or that such powers only apply to “the bad guys.” On an individual basis, some of these arguments may seem really reasonable. But ultimately . . . I can’t get past the fact that what they add up to is the idea that the president can have someone executed on his say-so based on mere suspicion of a crime, as long as it declares doing so a state secret. We’re so frightened of terrorism that we forget that there’s a reason democracies limit the government’s legitimate use of force, particularly against their own citizens. It’s hard to imagine a more direct or final deprivation of liberty without due process.
Adam’s point here is not really about law or doctrine. He acknowledges, after all, that some of the government’s arguments seem “really reasonable.” What is actually at stake is something more in the gestalt: The government may be right at a legal level, he seems to be saying, that Al Aulaqi’s father lacks standing to bring this suit and that targeting decisions are a kind of textbook case of a political question under Baker v. Carr. 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 Adam is really saying 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.
His point deserves a clear answer. Let me try to give one.
For starters, the range of dispute is actually much narrower than Adam’s argument lets on. Nobody thinks the government can, to borrow Adam’s words, “execute” someone on a suspicion of a “crime.” I have no doubt, for example, that if the President ordered CIA paramilitary forces to stab Adam or me or anyone else with a ricin-tipped umbrella in London on suspicion of a crime (even a serious one), that would be grounds for impeachment and later prosecution.
Conversely, nobody doubts either–not seriously anyway–that the government may kill a U.S. national as part of an overseas military engagement. If our forces attack a Taliban unit and a John Walker Lindh-like character happens to be in that unit, nobody seriously contends that the presence of a U.S. national requires the guns to go silent. Indeed, I would go a step further: Nobody seriously contends that the military cannot attack that unit even knowing that an American is part of it. In other words, everyone serious acknowledges (a) that the President can sometimes kill U.S. nationals in military engagements overseas, and (b) that the power to do so is narrow and in no sense defined by the person’s alleged criminality.
The real dispute centers around the targeting of a U.S. national in zones at once outside of conventional military battlespaces and outside of the reach of law enforcement. Yet the real dispute is narrower even than this. Because if Anwar Al Aulaqi were merely suspected of being a serial rapist and murderer, I would have no reservations about saying that the President lacks any authority to target him even in ungoverned areas of Yemen. That is, when the criminal makes it to an ungoverned space, he wins. We don’t get to follow him there with a Predator. So the real authority is limited not just by geography and governance but by the nature of the target himself. That is, the president may only target an American national when when he has concluded in good faith that this person is either covered by the AUMF or poses a sufficiently-immediate threat to the country so as to trigger its right to self-defense.
In other words, Adam’s fear that “the president can have someone executed on his say-so based on mere suspicion of a crime” does not describe the claimed power properly. The better description would read: “The president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.”
Now, I don’t mean to suggest that this power is less than awesome. It is terrifying. Indeed, I can think of only a few things in this space more terrifying than a presidency with the power to kill its citizens, even under these very limited circumstances. One of them, however, is a presidency that lacks this power–one 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.