Please excuse the interrupted posting schedule — it’s like this, but probably in a good way ;). Basically, wish me luck for some things that have to happen today.
With apologies to Glenn Greenwald, I think it’s time for Democrats (and Americans, writ large) to become comfortable with targeted killing, even of a U.S. citizen. We’ve covered targeted killings here before. The power derives from the sovereign national right of self-defense, and trumps executive orders and international law “forbidding” assassinations — though to be sure, most authorities on the subject forcefully disapprove of the assassination of U.S. citizens. But, a string of Supreme Court decisions takes the legs out of Greenwald’s larger argument, that federal due process is actually violated when a citizen-belligerent is killed abroad. Although the Fifth Amendment does apply overseas, its force depends at least partially on the practicalities of the situation. Reid v. Covert, 354 U.S. 1 (1957); U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990). So under current law, whether it’s right or wrong, nothing Obama’s done is clear, black-and-white illegal, and none of it comes close to the Bush administration’s grave transgression of the effective suspension of the writ of habeas corpus over federal lands, accomplished (but ultimately halted by the Supreme Court) during the Bush years.
What we should do is set aside histrionics and ask ourselves first whether the targeted killing of men like Anwar al-Awlaki is ultimately illegal, as an improper compromise of the mediated foreign Fifth Amendment, and second, whether it should be. These are harder questions, both requiring a debate that can’t be started and ended so quickly.
Greenwald gets his quick answer by assuming al-Awlaki was killed “far from any battlefield.” But one of the things Bush got right — even if he applied it in a fundamentally flawed manner — was that the old definition of a “battlefield” doesn’t work anymore. No matter how we decide to define the term, the absence of a European line-of-battle formation, spent shell casings, or entrenchment is no longer dispositive. The enemy chose a nontraditional battlefield for us, and we cannot deny the battle.
On that basis, I would permit assassination only outside of American borders — we cannot permit the complete disintegration of the pomerium — and of American citizens only in those isolated situations where (1) the citizen’s connections to terrorism, apart from First Amendment activity, are not true subjects of debate, (2) where the citizen presents a clear and present danger to American security at home or abroad, and (3) where neutralization by other means continues to be, after reasonable investigation, impossible. If we want to consider truly routinizing this type of assassination, we might consider a warrant system, where citizens are given reasonable notice and opportunity to present themselves peaceably for trial to American authorities. There is, after all, no debate that al-Awlaki knew he was a target, but remained at large both to avoid justice and continue his fight against America.
But I suspect we don’t want to go down that road. Greenwald’s right about one thing — as a country, we’re far too good at avoiding serious moral debates. But he’s as guilty of that particular sin as the rest of us. Staking out an untenable, extreme position, one with no possibility of ever attracting serious support, hardly qualifies as constructive political participation. We need to be prepared for compromise, even ugly compromise, if we’re ever to deal appropriately with the fundamentally American questions posed by global terrorism.