Over at Attackerman, Spencer Ackerman has written two posts (here and here) posing challenging question about the legality of the Al Aulaqi strike; in the second post, he also critiques my earlier due process analysis of when a strike against a U.S. citizen can be lawful. Spencer raises several distinct questions in two admirably brief posts–questions that are by no means all of comparable difficulty. In this post, I would like to knock off the easiest of his questions; I will address the much harder ones separately.
In his first post, Spencer declares:
Here’s what I want to know: if we’re talking about the legal authority to kill an American citizen whom the government asserts is a terrorist, why does the FBI arrest terror suspects here at home? Why not pull Faisal Shahzad off a plane and bring him to a courtroom? Why not fly a drone over him and launch a Hellfire?
It’s clear what the distinction actually is. No American would be prepared for the psychological horror of a drone strike next door. Legally, though, what’s the difference?
I don’t think Spencer is right when he says what the distinction “actually is.” To my mind, at least, the distinction–the legal difference–is one of necessity. Assuming one has properly identified the citizen terrorist (and whether one has presents a separate issue that I will treat later), one is obliged as a matter of due process to neutralize the threat he poses by capture if possible. Only if a capture is not feasible without undue risk to forces or civilians is it consistent with due process to specifically target a U.S. national with lethal force. If the government, instead of capturing Shahzad, had simply shot him dead on the plane in New York, that would have presented a huge constitutional problem–just as I believe it would have presented a big due process problem had Navy SEALS shot Al Aulaqi between the eyes when capture was possible.
This distinction is, I suspect, as important to the administration’s legal reasoning as it is to mine. The New York Times today, for example, reports that:
The Obama administration legal team wrestled with whether it would be lawful to make Mr. Awlaki a target for death–a proposition that raised complex issues involving Mr. Awlaki’s constitutional rights as an American citizen, domestic statutes and international law.
The Justice Department’s Office of Legal Counsel eventually issued a lengthy, classified memorandum that apparently concluded it would be legal to strike at someone like Mr. Awlaki in circumstances in which he was believed to be plotting attacks against the United States, and if there was no way to arrest him.
In other words, the reason, to use Ackerman’s phrase, “Why In Sana’a And Not In Schenectady?” is that it is much more likely in Sana’a than in Schenectady–and more likely still in remote, non-urban areas of Yemen–that a capture will not prove possible. But when, even in Schenectady, capture is not possible–as in, say, the hostage situation–then unilateral lethal force conducted by the executive branch can be consistent with due process.