About a year ago, U.S. District Judge John Bates tossed a lawsuit that Anwar al-Awlaki's father had brought against the United States government. Several months later, al-Awlaki was killed by a drone strike in a remote mountainous area of Yemen, causing much hand wringing among those who think that someone who is hell-bent on making war against our country should be given special treatment because they're an American citizen.
The judge was absolutely right. When someone wages war on our country, they make themselves a perfectly valid target for our military. It's our military's job to find external threats and neutralize them, and just because a target is an American citizen doesn't make them any more or less of a threat.
The military should take into consideration only whether a target is a danger to the country, and what is the best way to neutralize them. If sending a drone, or bomb by plane, is the best way, then that's what they should do. If sending a special forces team in would be more effective, attempting to capure them and potentially extract intel from them, then that's what they should do. They shouldn't be forced to give special treatment, potentially putting the lives of soldiers and American citizens at risk, by having special rules of engagement just because a target was born in our country, or gained citizenship in some other way.
By the absurd logic being used to say the government shouldn't be able to do it's job, the North should have had to come up with legal evidence that the soldiers fighting for the South in the civil war were enemies of the state before shooting back at them on the battlefield. The substantive difference here is the battlefield is worldwide, and we often only know where they are for short windows of time, and in places where capture is difficult, dangerous and/or impossible.
Speaking on this subject a few days ago, CIA General Councel Stephen Preston had this to say:
...citizenship does not confer immunity on one who takes up arms against his own country. It didn't in World War Two when there were American citizens who joined the Nazi army and it doesn't today.
Preston was speaking to an American Bar Association conference on national security issues, and was followed by the Defense Department's General Counsel Jeh Johnson, who clarified the limits of this view, batting away slippery slope arguments, by saying that it doesn't include some guy making a bomb in their home who happens to identify with terrorist groups like al Qaeda. He also commented on the practical side of the equation, saying the courts, "are not equipped to make those types of decisions which very often are based moment-by-moment on an intelligence picture that constantly evolves."
Johnson is right on both accounts. It's the job of law enforcement to deal with domestic terrorists. But it's absurd to think that the FBI, rather than the military, should be tracking down terrorists in the mountains of foreign countries, while they plot attacks against American citizens.
Coming full circle, this segment from the Distict Court ruling mentioned at the outset of this article summarizes the legal precedent that debunks the argument that these attacks are clearly unconstitutional:
To be sure, this Court recognizes the somewhat unsettling nature of its conclusion -- that there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is "constitutionally committed to the political branches" and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the "particular question" posed by a specific case, and the doctrine does not contain any "carve-out" for cases involving the constitutional rights of U.S. citizens.
The federal government has not said that it should be able to attack American citizens at will, as some straw men built by mostly liberal and libertarian commentators have tried to make their statements out to be. The federal government has said that American citizens will not get special treatment on the battlefield if they are fighting for an enemy of the state. Hamstringing the military with such special rules of engagement is both divergent from precedent used in past conflicts, and puts American soldiers and citizens at risk.
Solomon Kleinsmith is a former nonprofit worker, serial social entrepreneur and strident centrist independent blogger from Omaha, Nebraska. His website, Rise of the Center, is the fastest growing blog targeting centrist independents and moderates.