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Good for Ben Wittes, Jack Goldsmith and Robert Chesney. They’ve started a national security blog. Like Adam Serwer, I learn from their perspectives frequently, and especially when I don’t agree with them. It’s always valuable to read the work of obviously brilliant people whose views diverge from your own.
Like this post, for instance, in which Wittes finds fault with the ACLU’s Anthony Romero and CCR’s Vince Warren. Full disclosure: the woman I love works for the ACLU; and frequent readers of this blog know that I often find myself in agreement with the organization even without that heavy thumb on the scale. But what’s remarkable about the post is that Wittes doesn’t address the basic and disturbing fact that in Anwar Awlaki’s case, the Obama administration is targeting an American citizen for assassination without due process of law, and it won’t do to say, as Wittes does, that Awlaki can just turn himself in if he wants his rights as an American citizen. Anyone who listens to Awlaki’s speeches can tell he’s plainly guilty of incitement. He’s a dangerous man. But the government is crossing into dangerous territory here, and it deserves more reflection than Wittes devotes in his post. That‘s a “hard national security choice.”
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There’s an even more glaring problem here. Suppose Awlaki decided to turn himself in as Wittes suggests. Would we then read him as Miranda rights and charge him in a trial? I would, but I’m not sure Obama would, and I’m not sure Wittes would either. I’m not sure either Obama or Wittes would even give him a military commission. Awlaki has no reason to think that turning himself in would decrease his chances of facing execution without trial–and good reason to suspect there would be a round of enhanced interrogation thrown in as an added bonus.
For that matter, anyone close to Awlaki who happened to know where he was and might consider telling us is in exactly the about the same situation–more likely than not, the only reward they’d get for their tip would be indefinite detention who-knows-where.
Since he’s digging in on this in a later post, it’s important to emphasize this–no one who is as determined as Obama or Ben Wittes is to expand military commissions can say Awlaki is free to turn himself in–it makes little difference whether you are assassinated by drone or killed by order of a kangaroo court, the important point is that American citizen would be killed without real trial.
It seems that Wittes’ argument is just that U.S. authorities have the right to use the threat of force in seeking to apprehend wanted persons, including outside their border (I’ll leave aside for the moment the question of whether the U.S. can even legally seek to apprehend wanted persons outside it’s borders in any way.). Wittes seems to be saying that this hit list is nothing mare than a manifestation of that commonplace fact. I have not commented much on the Awlaki authorization, because I have an extremely sketchy understanding of the actual legal and procedural exigencies implied by it. Some act like we might as well treat it like the assassination has taken place in fact, while Wittes et al say it’s nothing more than the routine threat of force accompanying all law enforcement. I don’t really understand what the authorization (if that is what it is) amounts to. I wonder if those who comment on it with a confidence I can’t summon do.
Obviously we can seek to have them apprehended by local authorities. What we can do using our own aparati is a different question.
I don’t think even Wittes is crazy enough to call for drone strikes to be used as a threat to encourage fugitives to surrender. His comparison was to a hostage standoff–you kill not to apprehend wanted persons, but to save the hostages. I think that’s a flawed comparison, but the real point here is that the logic of “turn yourself in if you don’t want to be assassinated” would, indeed, imply that drone strikes should be used as a threat to encourage all fugitives to surrender.
Huh? His argument is clearly just what you say he is too crazy to argue.
I said he wouldn’t be crazy enough to argue it, and he isn’t arguing it. He considers the case of Awlaki morally equivalent to that of a hostage-taker, and killing him as equivalent to killing a hostage taker.
It’s a logical consequence of the particular argument he makes that we could use drone strikes to apprehend any fugitive, but Wittes hasn’t followed the logic that far.