The two obvious tries, “whenever it wants” and “never” are both clearly inadequate, and we’re left to figure out a big, difficult, procedure-and-precedent intensive “sometimes.” Alford examines the issue in the context of Anwar al-Awlaki, the U.S. citizen who has almost certainly been an operational member of al Qaeda and is currently thought to be hiding in Yemen.
I set up this month’s edition for two reasons.
First, this area of law has a long tradition behind it, with live and complex disputes. It’s also got tie-ins to many of the most fascinating periods of Anglo-American history — to Magna Carta, the English Civil War, the American Revolution, the American Civil War, and of course today. If you’re a history buff, something here is bound to appeal.
Second, my sense is that there’s an underlying dispositional fight going on.
The get-tough side wants to signal that terrorists are “whirled/ beyond the circuit of the shuddering bear/ in fractured atoms” or the equivalent thereof (perhaps less literary) in their own heads. It’s simply not enough to have a trial. It’s not even enough to have a military target list. There has to be something worse than the worst we can do. Worse than Johnny Reb, even. And so, without much protest, a U.S. citizen has been placed on a targeted killing list. Neither he nor anyone else can challenge the decision; it is, in Orwellian fashion, a “political question” not to be reviewed by the courts.
Civil libertarians like Alford note that the powers being claimed against al-Awlaki are extensive and unprecedented. (Well, not quite unprecedented. A fellow named David ap Gruffydd appears to have gotten similar treatment in thirteenth-century Wales. Having to go back that far should be a clue that something’s off, shouldn’t it?) They worry that in the quest to stake out ever-tougher positions against outsiders, we are in the process giving our government a vast and arbitrary power.
Worst of all, it’s a type of power completely unnecessary to fight even truly existential threats against the American people and their government. If we didn’t need this procedure to fight the U.S. Civil War, why do we need it for al-Awlaki?
In practice, remember, his treatment is likely to be the same in any case, and it is likely to resemble what just happened to Osama bin Laden. If so, no one will shed any tears for him. Not even me. But long after he’s dead, the power and the precedent will remain — not only may citizens sometimes be legitimate targets of war (which no one doubts), but the power to declare them such is absolute and unreviewable (which ought to be the stuff of dystopian fiction, but it isn’t).
What will happen if, in the fall of 2012, the presidential election isn’t going Obama’s way? What if his opponent — perhaps someone with a weird, foreign-sounding name — gets put on a targeted killing list? Is that an unreviewable political question? (No? Then who decides? And by what rules?) It would be a tremendous final irony to our democratic form of government if the political question doctrine were to destroy the very possibility of politics.
I don’t for a moment believe that Obama would do this. But I don’t enjoy being at the mercy of his or any other individual’s mere good will. No matter how much of an Obama supporter you are, you shouldn’t either. The process counts more than the man, or at least it should.