Andrew:

But I do believe we are at war; and that killing those who wish to kill us before they can do so is not the equivalent of “assassination”.

There are a few reasons why I find this to be a horribly cavalier and misguided reaction. This administration is making a claim as broad, absurd and offensive as the Bush administration did when it claimed the authority to declare anyone, including U.S. citizens, enemy combatants. The objection that this power is only going to be used against “those who wish to kill us” trusts that the government is never going to abuse its power and that the government is never going to make a mistake. One of the main reasons why we have due process is the assumption that governments routinely abuse their power and frequently make mistakes. Has the last decade of American history already vanished from our memories?

Consider how many people were wrongfully rounded up and detained at Guantanamo for years, and then suppose that they were all U.S. citizens, and further suppose that instead of being illegally detained they had all been killed by government forces (after all, they were “terrorists”!). According to this administration, not only would the government be within its rights to kill all those people (because they were “those who wish to kill us”), but that for the sake of national security there can be no oversight, no review and no accountability for the decision to kill them. These are the tactics of military governments, dictatorships and colonial empires. If we adopt those tactics, or acquiesce in them because “we are at war,” we will be embracing the legacy of those regimes. The Anti-Imperialists feared over a hundred years ago that empire would corrupt the republican nature of our government, and it certainly has, but it is rare that we have such a stark, clear view of just how much corruption there has been.

The trouble with an open-ended, extra-legal “war on terror” (or whatever euphemism people care to give it nowadays) is that there is no end to the “emergency” to which these extraordinary power-grabs are supposedly necessary responses. Not only will every President from now on claim to have the authority to kill citizens arbitrarily if they are deemed enemies, but in an open-ended “war” that spans the entire globe in which “battlefields” can be declared by government fiat there are absolutely no guarantees that this power will not be turned against political opponents and government critics at home or against Americans living overseas. Indeed, it is probably only a matter of time before this happens–all in the name of self-defense and national security, of course.

We should also be clear about the meaning of the words we’re using. Assassination is a method of warfare. The first people referred to in European languages as assassins were waging war against their enemies. Assassination was the asymmetric warfare of its time in the middle ages. Now it is used more often by more powerful, technologically advanced military powers, but the tactic is basically the same. The U.S. government and other allied governments have long reserved the right to assassinate individuals they deem to be national security threats. It’s just that up until now those individuals have happened to be foreign nationals. The only way one can correctly describe what the government claims it has the right to do to al-Awlaki is assassination. This is the same thing the government claims it has every right to do to all of those people in western Pakistan targeted by drone strikes, and it is the same thing the Israeli government claimed it has the right to do when it launches strikes aimed at killing a particular Palestinian leader. Up until recently, people may have believed that this power would never be directed against anyone with U.S. citizenship. If so, they were wrong. Now there are those who think that it will never be wrongfully used against American citizens. They are bound to be wrong, because there is no way that using power in such an unaccountable, extra-legal way will not be done wrongfully at some point. Indeed, I am doubtful that there can ever be a “right” way to use power to kill someone arbitrarily.

P.S. Andrew wrote in the next line:

My concern has always been with the power to detain without due process and torture, not the regrettable necessity of killing the enemy in a hot and dangerous war.

Obviously, this doesn’t make any sense. It’s only a “regrettable necessity” if the person is, in fact, “the enemy,” and in most cases we’re going to be taking the government’s word for it that its targets are actually legitimate targets. If we assume that the government should be constrained by due process when it detains suspected terrorists who aren’t citizens, why wouldn’t it also need to be constrained by due process before having citizens suspected of terrorism executed? As wrong as illegal detention is, and as abhorrent as torture is, neither is so final and irreversible as death. There can be no legal recourse or remedy that would do the citizen any good if the decision to kill him was made in error, and surely we don’t believe that intelligence reports are now so reliable that there is no possibility of misidentifying someone.