06 Sep The Washington Post on Al-Aulaqi
[W]hen a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance. Mr. Koh said in his speech that this practice is already followed, even in cases involving non-citizens. “The imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat” are taken into account before striking, he added.
In the case of an American, the government should go to even greater lengths before carrying out an attack. For example, the president should consider whether the target can be notified of his status and given the opportunity to turn himself in. The executive should also consider making public the general criteria — excluding ultra-sensitive methods and sources — that it uses to designate an individual for the target list.
U.S. citizens do not lose all their constitutional rights when they head overseas, but they also cannot use their citizenship as a shield when they join enemy forces with the intention of carrying out violent attacks against the country or its interests.
The editorial illustrates the fundamental problem with the targeted killing of American citizens. The Washington Post says that citizens do not lose their constitutional rights when they head overseas, but at the same time it endorses depriving a citizen of his right to life whenever the President determines — unreviewably — that he has “join[ed] enemy forces with the intention of carrying out violent attacks against the country or its interests.” We would never allow a state to execute an American citizen simply because the Governor has decided that he was guilty of capital murder (or, worse, that he intended to commit capital murder at some unspecified point in the future); such an execution would be a paradigmatic violation of due process. So how can anyone argue in good faith that due process permits the targeted killing regime adopted by the Obama administration?
There is, of course, an easy and fair solution to this problem: require the government to obtain judicial authorization for a targeted killing by proving, in an adversarial hearing, that the American citizen has committed a capital crime. If the government has reason to believe that notifying the target of his status will cause him to disappear, it can appoint counsel — perhaps the ACLU or the CCR? — to represent him in a secret proceeding. Either way, the process will strike the appropriate balance between the target’s rights to life and due process and the government’s need to protect the U.S. against terrorist attack.
Proponents of targeted killing should have no problem with this judicial solution, but I can hear the objection now — what if time is of the essence? What if, instead of having already committed a terrorist act, the American citizen is about to commit a terrorist act? The objection refutes itself, however, because no one — including the ACLU and the CCR — questions the US’s right to use targeted killing in such a situation. What progressives object to is what conservatives actually want: a diluted imminence requirement that allows the government to pre-emptively kill any American citizen it believes is playing (to use Wittes’ expression) an “operational leadership role” in terrorism, even if the terrorist group of which the citizen is a part is not planning an immediate attack.
Notice, though, that conservatives’ desire to dilute the imminence requirement actually supports predicating targeted killing on judicial authorization. First, the less temporally imminent the terrorist attack, the more reasonable it is to require judicial authorization for a targeted killing. Only when an attack is truly imminent is judicial authorization unduly burdensome. (And again, progressives accept that presidentially-authorized targeted killing is legitimate in such a situation.) Second, the less temporally imminent the terrorist attack, the more important it is to not deprive the American citizen of his rights to life and due process solely on the basis of an unreviewable presidential determination that he is involved in planning the attack. Determining with any certainty that a terrorist attack is imminent is difficult enough; determining that a terrorist attack may occur sometime in the future is nearly impossible. So if we are going to permit the government to kill an American citizen because it believes that he is planning a future attack, the last thing we want to do is entrust that determination to the politicized, confirmation-biased, and frequently univocal atmosphere that surrounds the President. Only an adversarial judicial hearing will do.