But what we don’t know yet are the answers to all those other questions above, about how this process works and what the constraints on it are. And most importantly, we don’t know the answer to the question raised yesterday by Spencer Ackerman of The Washington Independent: “Why Is It Legal to Kill Anwar al-Awlaki?”
The responses offered to date by the Obama administration and other government agencies are comically feeble, or would be if the matter weren’t so serious. Blair told Congress back in February that the intelligence community would require “specific permission” to kill an American. Officials told the Post this week that adding Awlaki to the CIA list “required special approval from the White House.” Reuters and the Times were a little more specific, noting that approval was required from the National Security Council.
Specific permission, special approval—this amounts to the government saying, “Trust us; we thought really hard about this one.” It seems insufficient, to put it politely, as an explanation for why it is now possible to sweep aside what National Review’s Kevin Williamson aptly calls “a bright line on the political map.” Actually, it seems not so far removed from the sardonic explanation offered by CBS’s legal analyst Andrew Cohen, back in 2002, paraphrased by Chan as: “this is legal because the President and his lawyers say so—it’s not much more complicated than that.” That seemed to be the operating principle for a lot of things around that time, of course, many of which haven’t worked out so well.
Williamson’s post adds another valuable point: the need for more information, and a better understanding of what this policy actually means, is distinct from the question of whether we should be targeting Awlaki. If he is as dangerous as we’re being told—a big if—there are colorable arguments that he should be a target, and perhaps even a target of lethal force. But there is a tremendous risk that in adopting an ad hoc, undefined process to deal with him, as opposed to the broader legal and moral challenge of homegrown terrorism, we are heading into dangerous territory. “Awlaki is an unusual case now, but he may not be in the future,” says Karen Greenberg, executive director of NYU’s Center on Law and Security. Will others be targeted? If not, why not? If there are limits on this power, how will they be maintained? Answers to these questions haven’t been articulated. It’s not even clear that they exist.
We shouldn’t have any delusions about the prospects for Congressional oversight here. We also shouldn’t have any delusions about press miracles in the face of a unified executive branch and a deferential judiciary: Ackerman wrote yesterday that he would be “spending [his] morning filling out FOIAs,” which is absolutely the right thing to do, but also unlikely to yield any short-term success.
But the press can, at the least, maintain pressure on the Obama administration, and make clear its obligation to defend, define, and explain this policy. It’s not an encouraging sign that a day after the stories on the CIA authorization appeared, there was no follow-up coverage in the Times or the Post. Before this becomes the new normal, we need the press—not only the civil libertarians in the blogosphere, and not only some fairly well-known independent reporters like Ackerman, but the news and editorial pages of our few remaining heavyweight institutions—to do its job. That means asking the government, repeatedly: Just what is the Awlaki standard, and why is it consistent with our traditional understandings of the rights of citizenship, the laws of war, and the rule of law?