The populist response to post-9/11 civil liberties concerns is, I guess, to just kind of be like “well, these are the bad guys!” and leave it at that. Ben Wittes, by contrast, produces nuanced and hand-wringy arguments that reach the same conclusion. So here he is on the al-Awlaki case:
In other words, Adam’s fear that “the president can have someone executed on his say-so based on mere suspicion of a crime” does not describe the claimed power properly. The better description would read: “The president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.”
Now, I don’t mean to suggest that this power is less than awesome. It is terrifying. Indeed, I can think of only a few things in this space more terrifying than a presidency with the power to kill its citizens, even under these very limited circumstances. One of them, however, is a presidency that lacks this power–one barred by law from attacking citizens even when those citizens make war against it and when it has no other available means of neutralizing them.
Really? It seems to me that it’s the very narrowness of the issue at hand that makes this situation so non-terrifying. Nobody’s saying that US citizens who defect to the enemy maintain some kind of shield of immunity in a battlefield context. Nor is anyone denying that the US government has the authority to arrest people it believes to have committed crimes. So why not send a bunch of troops into the relevant part of Yemen seeking to either create a context of stability in which al-Awlaki can be arrested or else perhaps he’d be killed on the battlefield? Well, because nobody seems to think that would be smart policy. Which is presumably because al-Awlaki isn’t in fact all that dangerous so policymakers don’t think it makes sense to engage in costly measures to kill or capture him.
By the same token, this Awlaki dispute has been playing out for months now and he keeps not being killed and nothing terrible is happening. If the Obama administration continues trying and failing to kill him for the next three months, I don’t think any of us are going to spend that time shivering in terror. It’s just not that big of a deal. I think if we said “write down on a piece of paper all the things you find more frightening than the prospect of Anwar al-Awlaki surviving for six more months” you’ll find that you run out of room on the piece of paper long before you run out of reasons.
At any rate, to state what should be obvious the issue here as with almost all the post-9/11 assertions of power has to do much more with the process than with the substance of things. The White House obviously isn’t saying it has the legal authority to order Glenn Greenwald murdered on the streets of Rio. But they do seem to be saying that if they issue such an order based on a lot of forged evidence, that there’s no legal process through which the agents of the US government can be prevented from carrying out the hit. Now as it happens the power being alleged here is so extreme that in practice it’s difficult to imagine in being misused in this way — I both hope and assume that such an order wouldn’t be followed. But we know that broad post-9/11 surveillance powers have been misused in ways with no connection to al-Qaeda whatsoever. And there have been no real consequences for it, so in the future we should assume that there will be more abuses and more egregious ones. And in general when you create a lot of abuse-prone processes, it’s very likely that you’re going to see abuse. We can only hope that the inevitable scandal/backlash/outrage cycle will arise before it comes to the point of Presidents abusing this particularly lethal form of authority.