Ben Wittes offers his counterargument to the ACLU/CCR and their lawsuit against the government over their authority to kill extremist cleric Anwar al-Awlaki:
Note that the ACLU and the Center for Constitutional Rights have to resort to fairly blatant factual untruths in their complaint in order to get around surrender as Al Aulaqi's obvious remedy. On page 4 of the complaint, filed on behalf of Al Aulaqi's father, the groups explain that the elder Al-Aulaqi is filing the case “because his son is in hiding under threat of death and cannot access counsel or the courts to assert his constitutional rights without disclosing his whereabouts and exposing himself to possible attack by Defendants” (emphasis added). The caveat is important. He can assert his rights. He merely can't do it while free. But the caveat is also incorrect. Al-Aulaqi can turn himself in at any time and face no risk of “possible attack.” What 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?
There is, as Ackerman says, a very hard issue here, but it doesn't concern Al-Aulaqi, who has fair notice that the government means to neutralize him and that he risks death if he does not surrender. The hard question concerns the hypothetical U.S. national on a kill list who does not have notice, that is, who does not even know he is on the list. Al-Aulaqi has a remedy. He just doesn't want to use it.
It's true. Al-Awlaki could turn himself in and sue the government if he wanted to. I could imagine him being scared to do so, but it's not beyond his means. But I think there's also a genuine matter of what constitutes "fair notice" here -- anonymous quotes from intelligence officials in newspapers? There isn't even a formal indictment in place.
I still think the lawsuit is important -- at the very least I don't think the process by which American citizens in countries we are not at war with are designated as enemy combatants and targeted for killing should be something that the government should keep secret. If it's secret, then, as Spencer Ackerman says, we don't really know how legitimate the argument for targeting him is. Which brings us back to the original point, which is that there really is something disturbing about the U.S. government simply asserting the authority to kill a U.S. citizen simply because they've said they're a terrorist. How do you know he's a terrorist? Because they say so. How can that possibly be good enough? Unlike the Silver Spring case that Wittes mentions today, this isn't a situation involving an obvious, imminent lethal threat.
Ultimately this case, if it's decided on the merits, and not blocked by use of state secrets, will be, like Boumediene, another argument over what constitutes the "battlefield" in the fight against al-Qaeda and its allies, and whether or not targeting someone like al-Awlaki is a battlefield decision that should be made in that context, or a criminal matter where due process must take priority. That's an important argument to have.
I would offer one question to Wittes, who has made compelling arguments in the past for the implementation of an indefinite-detention statute that would subject the matter to judicial review. Why should the government be forced to ask the courts for permission to hold someone indefinitely but not for permission to vaporize someone outside a zone of active combat with a drone strike?
