A Response to Nick Baumann

By Benjamin Wittes
Tuesday, November 30, 2010, 7:40 PM

Over at Mother Jones, Nick Baumann accuses me of arguing against straw terrorists. Quoting a Lawfare post from a little while back in which I posited that the alternative to reserving the option of lethal force against Anwar Al Aulaqi is paralysis in the face of the threat he poses, Baumann writes,

This is a straw man argument. No one is saying that Obama can't reserve the option of lethal force. Even Salon's Glenn Greenwald (a "civil liberties extremist") isn't saying that. And it's important to note that "reserving" the option of lethal force is not what's on the table: according to multiple reports, the White House has already opted to use lethal force. It is actively trying to kill al-Awlaki. Nor would declining to kill al-Awlaki unless and until he presents an imminent threat necessarily equal governmental "paralysis."

Rather, Baumann argues, "The civil liberties groups have explicitly acknowledged that they believe the government can kill al-Awlaki as 'a last resort to protect against concrete, specific and imminent threats of death or serious physical injury.'" He then goes on to divide the world of attitudes about Al Aulaqi into two categories:

There seem to be a whole bunch of different positions on the al-Awlaki issue, but I think they boil down to two:

  1. It would be morally and legally okay if al-Awlaki is vaporized for what he has (allegedly) done thus far, and despite that he does not (as of yet) meet the definition of an imminent threat. This group might have qualms about the strike, but they'll ultimately accept the executive branch's right to make the decision to kill al-Awlaki without interference from the judiciary. They ultimately believe the executive branch's determinations about al-Awlaki—namely that (1) he is an "operational" member of Al Qaeda in the Arabian Peninsula, (2) therefore he's "at war" with the US, and (3) he's therefore covered under the 2001 Authorization for the Use of Military Force—make it okay to kill him even if he's not an imminent threat.
  2. It would be either morally or legally wrong (or both) for the government to kill al-Awlaki unless and until he presents an imminent threat, or the government proves its case against him in a court.

I think Baumann makes several important analytical errors here, errors which lead to a too-simplistic boiling down of positions that one cannot so easily condense. For starters, it is quite wrong to say, as Baumann does, that imminence is "the key issue here." As a matter of law, if Al Aulaqi is covered by the AUMF and one accepts that the United States is engaged in an armed conflict with AQAP, Al Aulaqi can be targeted at will. Assuming Yemen consents to an operation on its territory, this isn't even a tricky question. The imminence of the threat he poses is irrelevant to that discussion. Granted, civil libertarians do not accept this premise, but it--and not anything to do with imminence--is the core of the government's position.

Second, even assuming that imminence is required, it is not in any sense common ground what that word means as applied to someone alleged to be operationally involved in but not himself conducting terrorist operations. The government's view of imminence, at least as I understand it, is not fundamentally temporal in nature; it is rooted, rather, in the idea that a chain of events is unfolding which, left uninterrupted, will ineluctably result in a particular outcome one desires to avert. There's a lot of ground between that view of imminence and the one that the ACLU and CCR acknowledge as the only lawful situation in which the government could target Al Aulaqi: "a last resort to protect against concrete, specific and imminent threats of death or serious physical injury." If one truly accepts this highly-restrictive set of conditions as a necessary prerequisite to lethal force, then paralysis is precisely what one is proposing. What, after all, are the imaginable circumstances in which killing Al Aulaqi--who will never have a bomb strapped on his own back or wedged in his own underpants--will truly represent the last possible means of stopping a catastrophe? If, for example, one believes that Al Aulaqi played an operation role in the Christmas Day bombing attempt, there was no time at which killing him would have been the last opportunity to stop Umar Farouk Abdulmutallab, who could simply have been arrested or killed at the airport later. A rule like that is a rule that one can only ever kill the small-fry terrorists who carry out orders, never the big guys who send them. The big guys will never meet a strict understanding of imminence, and they go to places like Yemen precisely because they know they can avoid arrest there. So to preclude the option of force except in a temporally strict moment of imminent threat with respect to high-level terrorists camped out in ungoverned spaces is, as a realistic matter, to preclude the option of force entirely.

Third, Baumann is wrong to ridicule my use of the phrase "reserving the option of lethal force." It just isn't true that the government has made a simple decision to kill Al Aulaqi. The government, rather, has said clearly in court, both in briefs and in oral statements, that Al Aulaqi can turn himself in at any time and face no threat of death. What's more, I would bet a considerable amoung of money that the internal authorization to use force against Al Aulaqi has some conditions attached to it. It doesn't say, I suspect, "Kill the guy even if he tries to surrender" or "Kill the guy even if a capture is manageable with minimal threat to forces." Rather, I would bet that force is authorized only in the absence of less lethal alternative means of neutralizing the threat he poses. In other words, what is authorized is the option of force--which is precisely what civil libertarians want to take off the table except in situations that will never arise with respect to people like Al Aulaqi.

These errors, as I said before, lead Baumann to an overly simplistic grouping of attitudes. Here is how I would group them. I don't think realistically one can avoid fewer than five genuinely distinct positions:

  1. Targeting Al Aulaqi is legal because he is "part of" AQAP, which is co-belligerent with groups against which Congress authorized the use of force.
  2. Targeting Al Aulaqi is legal because he poses an imminent threat (using a broad conception of imminence) to the United States.
  3. Targeting Al Aulaqi is legal because both positions (1) and (2) are true.
  4. Targeting Al Aulaqi may or may not be lawful because, although no conditions of armed conflict allow his targeting, he may or may not pose an imminent threat to the United States (using a broad conception of imminence).
  5. Targeting Al Aulaqi is unlawful because no non-international armed conflict exists in Yemen that would permit his targeting, and Al Aulaqi poses no imminent threat (using a narrow conception of imminence) to the United States.