Targeted Killing

Not Engaging With He Who Must Not Be Named

By Benjamin Wittes
Friday, September 30, 2011, 3:19 PM

A senior administration lawyer involved in national security issues writes in with the following:

I read the commentary by He Who Must Not Be Named On This Blog on the killing of Aulaqi, and while I understand that you refuse to engage him, I would like to put several relatively straightforward questions to anyone inclined to be persuaded by his argument. If he can answer them without either rhetorical excess or ad hominem comments, so much the better:

  • Do you agree that a killing that is legal under the law of war is not an assassination and satisfies due process of law?
  • If an American citizen had joined the German Army during World War II and fought against American soldiers, would the law of war, and due process of law, have permitted American soldiers to kill him?
  • During World War II, American planes specifically targeted and shot down the plane carrying Admiral Yamamoto, the architect of Pearl Harbor.  If Yamamoto had been born in the United States and was thus an American citizen, would this have been legal under the law of war?  Would it have satisfied due process of law?
  • If you agree that Americans fighting against us as part of enemy military organizations can properly be killed in wartime, given that Congress has authorized the use of “all necessary force” against “those . . . organizations . . . he determines planned, authorized, committed , or aided” the 9/11 attacks “in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons,” what, if any, do you consider to be the relevant differences between Aulaqi and the Yamamoto hypothetical?
  • As you know, a highly respected judge held that the issue of whether Aulaqi was properly targeted was a political question outside the competence of the judiciary, a decision that Aulaqi’s father did not feel was worth trying to appeal.  In light of that how would you propose that the judiciary supervise targeting decisions in wartime?