The Real Reason Progressives Support the ACLU/CCR Lawsuit (Updated)

Ben Wittes at Lawfare and Adam Serwer at TAPPED traded posts today on the government’s motion to dismiss the ACLU/CCR lawsuit.  I think the exchange — particularly Wittes’ response to Serwer — illustrates perfectly why discussions about national security between conservatives and progressives always seem to have a Pinteresque quality.  Here is the point to which Wittes responded:

I think it’s really easy to get sucked into acquiescing to this kind of authority out of the belief that terrorists are really scary, or that such powers only apply to “the bad guys.” On an individual basis, some of these arguments may seem really reasonable. But ultimately, like Greenwald and Marcy Wheeler, I can’t get past the fact that what they add up to is the idea that the president can have someone executed on his say-so based on mere suspicion of a crime, as long as it declares doing so a state secret. We’re so frightened of terrorism that we forget that there’s a reason democracies limit the government’s legitimate use of force, particularly against their own citizens. It’s hard to imagine a more direct or final deprivation of liberty without due process.

I’d only add that whether or not al-Awlaki is a very bad person is irrelevant to the question — which is whether or not the president has the authority to kill anyone he wants with no judicial review based on having simply labeled them a terrorist. If due-process rights only applied to “good people,” they wouldn’t be rights, and if the government can deprive you of such rights merely by labeling you a “bad person,” then ultimately none of us is safe.

And here, in relevant part, is Wittes’ response (emphasis mine):

So the real authority is limited not just by geography and governance but by the nature of the target himself. That is, the president may only target an American national when when he has concluded in good faith that this person is either covered by the AUMF or poses a sufficiently-immediate threat to the country so as to trigger its right to self-defense.

In other words, Adam’s fear that “the president can have someone executed on his say-so based on mere suspicion of a crime” does not describe the claimed power properly. The better description would read: “The president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.”

This response completely misses the point.  Wittes treats Serwer’s claim as fundamentally one about the class of people who can legitimately be killed — hence Wittes’ insistence that we are not talking about killing “criminals,” but only killing terrorists “at war with the United States.”  Serwer’s claim, however, is only secondarily (if at all) about the class of Americans who can be summarily executed. His basic point is about the process used to determine whether an American falls within that class.  Serwer believes — as do I, as do most progressives — that, except in the most desperate circumstances, no American should be summarily executed without judicial review of the President’s claim that he is “at war with the United States.”

Unfortunately, Wittes simply ignores the issue of judicial review, as is evident from his claim that the “better description” of the President’s claimed power is “[t]he president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.”  Notice what is lost in that redescription: Serwer’s insistence on a meaningful judicial check on the President’s power.

Put more simply: progressives don’t trust the President to make such determinations in good faith.  Not President Bush, not President Obama, and certainly not President Palin.  We will defer to the President — in the hope that he or she will genuinely act in good faith — when the U.S. is possibly faced with an imminent terrorist attack.  (As the ACLU/CCR lawsuit makes clear.)  But we insist on judicial review when the threat of an attack is merely speculative.  (And recall, Wittes has admitted that he does not believe imminence is required for the use of deadly force against an American; he believes such force is also justified whenever “the individual is covered by the AUMF, reasonably interpreted” — an explicitly non-temporal criterion.)

Wittes concludes his post with the following (emphasis mine):

Now, I don’t mean to suggest that this power is less than awesome. It is terrifying. Indeed, I can think of only a few things in this space more terrifying than a presidency with the power to kill its citizens, even under these very limited circumstances. One of them, however, is a presidency that lacks this power–one barred by law from attacking citizens even when those citizens make war against it and when it has no other available means of neutralizing them.

Once again we see the disconnect.  No progressive is arguing that the President should be “barred by law” from killing Americans who pose an imminent threat to the security of the U.S.  We are not even arguing that the President should be “barred by law” from killing an American who does not pose such an imminent threat.  Instead, we argue that the decision to kill an American who does not pose an imminent threat should be submitted to law — to the judicial process — not left to the “good faith” of the President.

Differently put: progressives are not asking for Presidents to be barred by law; conservatives are asking that they be exempted from it.

UPDATE: Jack Goldsmith responds to my post by arguing that it “is not right to claim that those who support the President’s authority to make such decisions free from judicial review do not believe in legal constraints on the presidency.”  No, they simply believe that the only applicable legal constraints are those that the Executive imposes on itself.  Indeed, after touting the untestable claim that “the program under review in Al-Aulaqi was thoroughly vetted by scores of lawyers across many agencies, with precise limitations and guidance attached,” Goldsmith then admits that those “legal constraints” are, in fact, not constraints at all: “There is, moreover, a very good argument that our fundamental law, the U.S. Constitution, commits wartime targeting decisions to the President alone, subject to his self-compliance with law” (emphasis mine).  I’ll leave it to readers to decide whether such unreviewable “self-compliance” qualifies as a “legal constraint.”