A Quick Thought on the “Surrender” Option
In its motion to dismiss the ACLU/CCR lawsuit, the government argues that the plaintiffs lack standing to bring the lawsuit on al-Aulaqi’s behalf, because al-Aulaqi has the option of surrendering to the government and bringing the lawsuit himself:
Defendants state that if Anwar al-Aulaqi were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner, legal principles with which the United States has traditionally and uniformly complied would prohibit using lethal force or other violence against him in such circumstances… Anwar al-Aulaqi would have the choice at that point, as he does now, to seek legal assistance and access to U.S. courts.
Ben Wittes made the same argument a few weeks ago:
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.”
Ben and I disagreed about the “surrender” option at the time, and I continue to find it unconvincing even with regard to al-Aulaqi. But a post by Glenn Greenwald today reminded me that there are three other Americans whose targeted killing has been authorized by the President. Which raises the question: do those Americans have the “surrender” option? Have they been notified that, if they want to assert their constitutional rights, they need to turn themselves in to “the proper authorities” before the government kills them? Or are they completely oblivious to the fact that the President has approved their execution?
It’s an important issue. The government’s standing argument may be plausible with regard to al-Aulaqi, whom we can safely assume knows that he is on the President’s hit list. But it is only plausible with regard to the other three Americans if they have been notified of their status. If they haven’t, how do they assert their rights? Either they must be informed that they can be killed at any time — something I think the government is unlikely to want to do — or an appropriate party must be allowed to assert their rights on their behalf.
Here’s a suggestion: how about the ACLU and CCR?