why extra-judicial killings on an unconventional battlefield should make us nervous

At the risk of boring people who follow me on Facebook, I’m going to cross-post something I said there recently in response to Attorney General Eric Holder’s address at Northwestern Law School discussing the Executive Branch’s right to kill American citizens without “judicial process,” which Holder distinguishes from “due process.” (The latter, he notes, is always required when the U.S. Government uses force, while the former may not be.)

I’m bringing it up again because it showed up on Friday night’s episode of Real Time With Bill Maher — you can see the relevant video at Mediaite. (It was removed from YouTube and is not embeddable here — sorry.) Maher, Andrew Sullivan, Glenn Greenwald, and Wendy Schiller agonize over it.

Good points from both sides. (Sullivan and Maher are more-or-less supportive of the killing, while Greenwald and Schiller are very much against.)

Greenwald’s key point, worth noting, is that most, if not all, of what Awlaki has been accused of (at least in the public space) is actually protected free speech. It’s quite legal to advocate for violence, even against the U.S. Government, in a general sense. (It’s why all the extreme fringe Klansmen’s Militia For The Revival Of True Liberty America-type websites are allowed to operate under no greater threat than that the SPLC will write their names down and call them jerks.) Greenwald and Schiller would like the government to provide the public with clear and convincing evidence that Awlaki had crossed the line to either actually taking part in violence or, at the very least, engaging in advocacy “directed to inciting and likely to incite imminent lawless action.” (The latter is not protected speech — Brandenburg v. Ohio, 395 U.S. 444 (1969).) Greenwald thinks this means a trial; and, to be fair, even Sullivan believes the Obama Administration should release the legal memo it used internally to justify the killing.

But Sullivan and Maher’s point carries some force, too. What do we do about American citizens who have actually crossed over and joined groups engaged in violence against the U.S.? It’s not a simple question. Here’s Sullivan at 2:38 in the video:

When someone has explicitly said, “I am taking up arms against my own country,” when they are with a militia in a foreign country — and it’s not a broad power [like] you’re saying — if we cannot capture him reasonably, if the Yemenis can’t capture him, but if we find him, we will kill him. Because he’s taken on… if he was…. I’m sorry, this is a war — where you kill people…. My point is this: that if you were, say, an American in the Second World War, joined the Nazis, was in a brigade, and you were fighting a land battle — are we supposed to find him and give him his due process rights?

I think that’s an excellent point — of course we wouldn’t. But of course, Al-Awlaki did not join a foreign army, nor does Al-Qaeda in the Arabian Peninsula have “brigades” — nor, for that matter, are we engaged in a clear “land battle” in Yemen. For all those reasons, Sullivan’s analogy doesn’t quite hold up. A guy who sermonizes against the U.S., even to the point of directly encouraging violence against the U.S., is rather obviously not in the same category as someone who wears a foreign uniform and marches in a foreign army’s columns carrying a rifle. Al-Awlaki’s position may fall into a murky hinterland between the two — it’s frequently claimed that he had crossed over into planning missions — but it’s precisely because of the murk that the due process question becomes harder to deal with.

When the decision to kill in battle is in the hands of soldiers on the ground, there is at least the potential for accountability afterwards (e.g., My Lai) if the decision is wrong or immoral. This is key — the field commander is actually collecting the evidence of “imminent threat” with his own eyes, so his decision to kill is likely to be correct. But if it is not, “land battles” of the kind fought in World War II and other traditional wars were quite public, they involved hundreds or thousands of men (aka witnesses), and at least in theory commanders and even soldiers could be held responsible for war crimes — essentially, killing without the minimal level of due process and restraint expected on the battlefield. Thus the law recognizes that battlefield killing is necessary and often expedited, but also reserves the right to review an officer’s decisions afterward.

But how do you determine that someone is posing an “imminent threat” to Americans when they’re far from a traditional battlefield? How do you deal with threats when they don’t wear uniforms or march in armies? The best analogy within our own borders would presumably be the right of the police to shoot a suspect they believe to be dangerous. But cops who shoot to kill are, again, subject to extraordinary review processes afterward. So, again, you get a kind of due-process-by-hindsight.

Now here’s the rub. When the decision to kill is made in quiet offices in D.C., and when the weapon used is secretive and impersonal, and when everything about the decision to kill is classified, it seems foolish to expect even after-the-fact due process. No one can follow up on the decision and make sure that the right thing is being done in our name.

Holder says: “The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.” But how do we know? If the process isn’t transparent beforehand (as in a trial) and also has no transparency after the fact (as it should when a cop or a soldier shoots someone), then how can we know that these acts are consistent with our values and laws? Are we just supposed to take the AG’s word for it? Or President Obama’s?

Perhaps that’s not a reason not to kill. But it might be a reason, at a minimum, to rapidly declassify information about the victims of targeted killings overseas. And to my mind, this should include not only American citizens like Al-Awlaki, but also people like Bin Laden and the hundreds of lesser nobodies we’re killing in the drone war in Pakistan. I trust President Obama in many things. But I don’t fully trust anybody with the right to kill in secret. More information is needed, here, before I can be sure that actions taken on my behalf are, indeed, consistent with American values.

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