Following Up on Aulaqi

By Benjamin Wittes
Friday, September 3, 2010, 5:31 PM

Spencer Ackerman complains that my earlier post "doesn’t address the basic and disturbing fact that in Anwar Awlaki’s case, the Obama administration is targeting an American citizen for assassination without due process of law" and he suggest that it "deserves more reflection than Wittes devotes in his post." He is quite right. I did not mean for the post to be an exhaustive account of my views of this subject, to which I shall return often. The post simply dealt with a narrow component of what is, as Ackerman says, a difficult issue.

Ackerman further says, that "it won’t do to say, as Wittes does, that Awlaki can just turn himself in if he wants his rights as an American citizen." But he doesn't say why it won't do. He doesn't, to my knowledge, make a similar argument about the hostage taker in Silver Spring this week. Yet this man too was a U.S. citizen who faced the choice of turning himself in or facing death (and he faced death). Why is it so different in Al-Aulaqi's case?

Note that the ACLU and the Center for Constitutional Rights have to resort to fairly blatant factual untruths in their complaint in order to get around surrender as Al Aulaqi's obvious remedy. On page 4 of the complaint, filed on behalf of Al Aulaqi's father, the groups explain that the elder Al-Aulaqi is filing the case "because his son is in hiding under threat of death and cannot access counsel or the courts to assert his constitutional rights without disclosing his whereabouts and exposing himself to possible attack by Defendants" (emphasis added). The caveat is important. He can assert his rights. He merely can't do it while free. But the caveat is also incorrect. Al-Aulaqi can turn himself in at any time and face no risk of "possible attack." What the ACLU and CCR are arguing in functional terms is that Al-Aulaqi has a right not merely to go unkilled but to go uncaptured as well. And where, I ask, does the Constitution or the laws of war say that?

There is, as Ackerman says, a very hard issue here, but it doesn't concern Al-Aulaqi, who has fair notice that the government means to neutralize him and that he risks death if he does not surrender. The hard question concerns the hypothetical U.S. national on a kill list who does not have notice, that is, who does not even know he is on the list. Al-Aulaqi has a remedy. He just doesn't want to use it.