Indeed, the justification raised for killing him has been his terrorist rap sheet: his involvement with terror attempts since 9/11, such as the underwear bomber. This justification is not a military but a legal-punitive one. There is no military, operational necessity to kill Awlaki because of what he has already done. If he is a present threat, the greatest operational use for him would be capture and interrogation. That would advance U.S. objectives in the War on Terror, whereas executing him from a distance does not.
Of course, from a constitutional standpoint, the U.S. could not forcibly interrogate an American citizen. But that is hardly an argument for killing him without due process instead. The U.S. executive should exercise neither power as a privilege over American citizens. Absent a military necessity for killing Awlaki, the president should, in fact, be bound by the Constitution as regards what to do about him.
The War on Terror was always going to pose these problems for us. The more it is fought outside our borders, the fewer of these problems it poses for our constitutional protections. The more it is fought across the rhythm of our daily lives – e.g., with electronic surveillance of our phone calls and emails, with security measures for air travel and mortgage lending – the more of these constitutional-rights problems we will see.
But we have choices about how to approach the problem of radical-Islamist terrorism, and nothing compels us to summarily execute U.S. citizens in pursuit of our objectives. I am even prepared to state categorically that nothing ever will.
If we had attempted to capture Awlaki, and he resisted and could only be subdued by being killed, that would be one thing. If he had been present in a tactical situation threatening civilians, and killing him could have eliminated the threat, it would have been appropriate to simply kill him without further deliberation. If he was plotting a major terror attack, and we knew where he was every day, it would have been useful to track his movements and communications, and roll up the entire operation. Killing him would be no guarantee of averting the attack in question.
But to advance our objectives in the War on Terror – as opposed to stopping an imminent bloodbath – there was and will be nothing to justify the extra-judicial, standoff-distance execution of a U.S. citizen. Accepting such an act on a vague, unexamined premise about the War on Terror is worse than sloppy citizenship: with continued application, it will be fatal to the project of guarding limited government.
In the War on Terror, an execution such as Awlaki’s is, in fact, a legal-punitive and not a military, strategic, or operational matter. At the nexus of the act of killing – the basis for the Civil War analogy – that makes the two wars different, and the analogy false.
We must beware false analogies; Obama’s Homeland Security department has already posited a false analogy between terrorists and law-abiding citizens involved in pro-life advocacy. The American left is currently busy analogizing the average, law-abiding gun-owner to Adam Lanza, the Sandy Hook killer. There will always seem to be some crisis-driven reason why Americans must accept the loss of constitutional limits on government power. Analogies will abound. But each one that makes unfettered government power seem urgently necessary will turn out to be false, as the Civil War analogy does.
Originally published at The Optimistic Conservative.
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