Wednesday, April 7, 2010

Passing the Point of No Return On Civilian Terrorist Trials

The Washington Post reports that the White House has targeted Anwar al-Aulaqi, (aka Anwar al-Awlaki) an American citizen now residing in Yemen, for CIA assassination:
“A Muslim cleric tied to the attempted bombing of a Detroit-bound airliner has become the first U.S. citizen added to a list of suspected terrorists the CIA is authorized to kill, a U.S. official said Tuesday.

“Anwar al-Aulaqi, who resides in Yemen, was previously placed on a target list maintained by the U.S. military's Joint Special Operations Command and has survived at least one strike carried out by Yemeni forces with U.S. assistance against a gathering of suspected al-Qaeda operatives.

“Because he is a U.S. citizen, adding Aulaqi to the CIA list required special approval from the White House, officials said. The move means that Aulaqi would be considered a legitimate target not only for a military strike carried out by U.S. and Yemeni forces, but also for lethal CIA operations.”
I’ve commented before on the incoherence of believing that, once we've apprehend him, we must grant an alleged terrorist the same legal forum and due process rights as an ordinary criminal defendant even though we're ethically and legally at liberty to target a terrorist for lethal military preemption or clandestine assassination before his guilt has been legally established. As a matter of doctrinal consistency, we’re obliged to choose one of three alternatives: we either stop targeting possible criminal defendants for assassination; prosecute every apprehended person who it would have been permissible to assassinate outside the criminal justice system , or devise a hybrid legal system that acknowledges that we need new standards of due process because we’re fighting a new kind of war as to which the traditional laws of war and criminal justice don’t readily apply.

But there’s a difference between being president and being a logician. A responsible president may conclude that, owing to the special burdens of his office, it's sometimes permissible to get the nation’s hands a little dirty to secure a vital national interest. In present circumstances, Obama might have concluded that, although there’s a contradiction between targeted assassination and legal due process, the best course would be to keep quiet about targeting al-Aulaqi to better secure the homeland without tarnishing the country’s reputation for upholding the rule of law. Past presidents have routinely decided that, on infrequent occasions, the best way to discharge their institutional responsibilities is to propagate a fiction that enables the nation to have it all ways at once.  That course of action would have enabled Obama to stick with his rhetoric about "rejecting the false choice" between our security and our ideals.

We can save an argument over whether Obama is wise to opt for transparency in this instance for another time. But I can’t help taking his decision to target of al-Aulaqi publicly as a sign that he won’t be trying high-profile alleged terrorists in civilian courts. It's another administration gesture cutting the feet out from under Eric Holder.

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