Two Points about Targeted Killings

By Benjamin Wittes
Friday, September 3, 2010, 12:00 PM

Anthony Romero of the ACLU and Vincent Warren of the Center for Constitutional Rights have an oped this morning in the Washington Post on their new lawsuit challenging the reported targeting of Anwar al-Aulaqi. They argue:

In zones of armed conflict, targeted killing can be a lawful tactic. But outside the context of armed conflict, targeted killing is legal only as a last resort and in the face of a truly imminent threat to life--and then only because the immediacy of the threat makes judicial process infeasible. Outside these narrow circumstances, targeted killing amounts to the imposition of a death sentence without charge, trial or conviction.

Furthermore, targeted killing is generally unnecessary because,

The government has the tools it needs to address the threat posed by suspected terrorists, including Americans, who find refuge in other countries. It can indict suspected terrorists and seek their extradition. It can seize their assets. It can share intelligence with other countries so that they can charge and try suspected terrorists. It can provide financial and technical support to other countries' law enforcement and intelligence services. In a truly extraordinary case, the government may have no choice but to use lethal force to address a threat that is both grave and imminent. But if we are to preserve anything resembling the rule of law, the government's authority to use lethal force against its own citizens must be limited to such grave and imminent threats.

I will leave aside for now the rather glaring problem that the normal tools do not function well in lawless spaces, where governments cannot or will not cooperate effectively with American law enforcement. As for the law, I commend the reader to Kenneth Anderson's amazing work on the subject, echoes of which were all over the administration's public statement on the subject. I would like to make two related points:

The first is that when a criminal takes hostages, as happened the other day in Silver Spring, MD, even law enforcement will use targeted killing. The ACLU and the Center for Constitutional Rights do not take the position that such action constitutes unlawful extra-judicial killings. Rather, I presume that they accept that the preservation of the life of the hostages justifies the use of lethal force based on standards totally different from the standards of proof and evidence that would suffice before a jury. My question is whether this case is really so different. Yes, the action is being contemplated by military and covert operatives, not cops and and not pursuant to law enforcement authorities. And yes, the threatened harm is, in a temporal sense, less imminent. Anwar al-Alauqi is not, after all, holding hostages. In another sense, however, the situation is far less controllable and much more threatening than a mere hostage standoff. Police, after all, cannot simply surround the building and wait him out. The threat extends far beyond the people the hostage-taker has in his immediate presence. The nature of terrorist plots, which involve great secrecy and operational security, means that authorities may not know how imminent the threat is; hostage takers are less subtle. And critically, the government has no other obvious tool by which to get him. Indicting him and seeking his extradition from a country that does not have custody of him, can't keep track of its prisoners, and lacks full control over its territory is an idea that nobody who actually has to neutralize a threat posed by a terrorist could love. Freezing his assets? I'm sure he's shaking.

This leads to my second point: The idea that Anwar al-Alauqi is being targeted for death and has no means of availing himself of his rights as a U.S. national is wrong. Like the hostage-taker, he has a remedy that will ensure his safety and give him the opportunity to defend himself: He can turn himself in. He can knock on the door of any U.S. consulate and say, "I hear you guys are looking for me." No special forces guys, Predator drones, or air strikes are going to take him out if he does this. In other words, this situation is, in conceptual terms, a fairly close analogue to the one in which cops surround a building and say, "Come out with your hands up or we'll shoot."