Ben Wittes’ Unconvincing “Hostage-Taking” Analogy (Updated)

Julian noted a couple of days ago that the ACLU and Center for Constitutional Rights have challenged the Obama administration’s “asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.”  The lawsuit claims, inter alia, that such killings violate the due-process rights of the targeted citizens. As Anthony Romero of the ACLU and Vincent Warren of the CCR explain in a supporting op-ed — one that focuses on the administration’s desire to kill Anwar al-Alauqi — in The Wall Street Journal:

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.

Ben Wittes disagrees with the op-ed in a post today at the new Lawfare.  His argument, however, is unconvincing:

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 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.”

There a number of problems with this.  To begin with, the situation is different — as Wittes himself admits.  There is no comparison between physically taking someone hostage and providing material support for terrorism or conspiring to commit a terrorist act, the crux of the allegations against al-Alauqi.  We allow the “targeted killing” of a hostage-taker without due process only because the threat is so imminent.  If law-enforcement intercepts an email from someone telling a friend he is going to take hostages the next day, we don’t permit a sniper to take him out as he is sitting at his computer.  Instead, we require the police to arrest him pursuant to a warrant if he is in his dwelling or without a warrant if he is in a public place.  Similarly, if the hostage-taker gets what he wants and lets the hostages go (or, for that matter, kills them), a sniper can’t simply take him out the next time he surfaces in public. In each situation the hostage-taker, no matter how evil or potentially dangerous, is still entitled to due process.

That does not mean, of course, that a terrorist situation could not be sufficiently imminent to justify a targeted killing.  But the lawsuit acknowledges that possibility, as the quote from the op-ed indicates.  Wittes’ real argument, therefore, is not that targeting al-Aulaqi is in any way similar to killing a hostage-taker while he is holding hostages, but that we should dilute the concept of imminence to the point where it ceases to have any meaning.  After all, every terrorist plot involves “great secrecy,” and there are always problems getting foreign governments to cooperate an anti-terrorism efforts.  So Wittes’ is simply arguing that because terrorism is difficult to fight, any American citizen suspected of being involved in terrorism should be targetable anywhere, anytime, without any due process whatsoever — a policy that has no basis, analogically or otherwise, in the Constitution (to say nothing of international human-rights law).

Wittes’ “surrender” argument is even less convincing, because it uncritically presumes that al-Aulaqi would receive due process if he turned himself in.  Wittes is probably right that he would not simply be killed if he presented himself to, say, the U.S. consulate in Yemen.  But it is certainly conceivable that he would be quietly “disappeared” — taken to one of the CIA’s many black sites and never heard from again.  Even if he wasn’t, there is little chance that he would be tried in a civilian court.  Instead, he would be deemed an “enemy combatant,” taken to Bagram or Guantanamo, and eventually — some years later — tried in a military commission.  And what would he be charged with?  Conspiracy?  Material support for terrorism?  As scholars have explained ad nauseum, those are not actually war crimes.  So Wittes’ “solution” to al-Aulaqi’s due-process right not to be summarily executed is for al-Aulaqi to subject himself to a system that would itself violate his right to due process.

There is, of course, a genuine solution to the problem.  The Obama administration could enter into a written agreement with the ACLU and CCR, acting on al-Aulaqi’s behalf, that promises to prosecute al-Aulaqi in federal court if he voluntarily turns himself in.  Anyone want to lay odds on that happening?

UPDATE: In a later post, Wittes argues that “[w]hat the ACLU and CCR are arguing in functional terms is that Al-Aulaqi has a right not merely to go unkilled but to go uncaptured as well. And where, I ask, does the Constitution or the laws of war say that?”  That is a revealing statement on a number of levels.  First, it seems to indicate that Wittes believes the laws of war apply in Yemen no less than in Afghanistan or Pakistan, which is incorrect.  Second, the ACLU and the CCR are not arguing that al-Aulaqi has a constitutional right to go uncaptured.  What they are arguing is that al-Aulaqi does not lose his rights to life and to due process simply because the U.S. is having trouble capturing him.  Here’s my question for Wittes: where in the Constitution does it say that a person forfeits his constitutional rights by refusing to turn himself in?

UPDATE 2: Wittes has responded to my post.  It’s well worth a read — and narrows the difference between us considerably.  I should make clear, as he notes, that an American citizen cannot currently be tried by a military commission.  But that is a legislative limitation, not a constitutional one; indeed, in Ex parte Quirin, the Supreme Court upheld a military commission’s conviction of an American citizen, Hans Haupt. (Haupt was ultimately executed.)