The Problems With Ben Wittes' Process Standard For Assassinating An American Citizen

God bless Ben, he's really trying hard to think through what the rules ought to be for killing an American citizen accused of terrorist membership. His proposal:

For due process purposes, one has reached the point of last resort, at which lethal force against a U.S. national becomes lawful, when (1) the suspect has been identified with a high degree of confidence using the best available intelligence subjected to heightened internal review, (2) no option for capture plausibly exists without undue risk to forces or civilians, and (3) the foreseeable consequence of a failure to interdict the suspect will be the loss of opportunity to neutralize the threat he poses and thus presents an unreasonable risk to human life.

There's something here, and it's commendable of Ben for spelling this out explicitly, something no one else I've seen has done. But the most important process step, I submit, is a prior question.

What should the evidentiary standard be for determining an American citizen poses a threat even warranting discussion of assassination?

I'm not a lawyer. Not. A. Lawyer. So forgive me if there's a legal step that I'm missing. 

But this is the question, the one that has to kick in before any of Ben's process -- or anyone else's -- gets applied. We know that Anwar al-Awlaki (and Samir Khan) are noxious propagandists who are obviously guilty of incitement to murder. We know this because of their public writings and videos. Is that enough to warrant assassination?

I refuse to accept the word of any member of the Obama administration that they are worse than that. When any member of the administration shows me evidence that they are, then I will consider that they are. But the stakes of killing an American citizen on the say-so of the government are, in my non-lawyer opinion, too grave to accept the mere assurance of a government official. To believe otherwise, in my non-lawyer opinion, is to be cavalier about both life and liberty.

Something must guard against President Whomever saying, "Oh, yeah, that guy's a dangerous terrorist. Order me up a double-tap." There must be evidence presented for that proposition. And then there must be a consideration of what the standards are for how great a threat a U.S. citizen represents. Then and only then can someone responsibly enter into a process like Ben's. I see nothing in Ben's process to guard against the whims of President Whomever; and that's the ballgame right there.

My friend who goes under the Twitter pseudonym @RBStalin asked if a North Waziristan resident (and Pakistani citizen) has the right not to be Predator'd. All I know is that if the Constitution means anything, it means that Anwar Awlaki has more rights than that guy. You can kill Usama bin Laden all day long and I will never, ever have a problem with it. (I might even pay to see it happen, were it possible -- that is how deep my hatred for bin Laden runs.) But an American citizen must possess protections from government killing that a non-citizen lacks.

What should the extent of those protections be? I don't pretend to have the Answers for questions like those. But I think I do know the order in which those answers have to proceed.

Comments

[Paul Gottlieb]

In a few short years, perhaps under a different administration, our Star Chamber will be deciding to off some American-born environmentalist who's standing in the way of Exxon's profits in Nigeria

[Daniel Serwer]

You are asking a lot: not only that the standard be clear, but that the evidence be presented in public. That would in essence require a trial in absentia, assuming that capture is not feasible. Is that what you are proposing?

Another question, again not meant to be rhetorical: is your refusal to consider protection of non-citizens well-founded? I'm not a lawyer either, and I think of it more as a foreign policy question. Is it wise to treat non-Americans as if they are not protected by either the American constitution or their own?

Daniel Serwer
www.peacefare.net

[JGR]

I'm a lawyer. An in absentia trial seems like the minimum you'd want to see before you even put a citizen on a list saying he/she can be killed.

Unlike Gingrich, I can find nothing in the Constitution which says the President saying so is considered due process.

Hamdi said that citizens who are also terrorists still have due process rights.

People are again throwing around Ex Parte Quirin but those folks at least got military trials.

Additionally, and as an aside, as Awliki was in Yemen it seems unlikely that capturing him was simply out of the question.

[Fernando Gimenez]

I second Daniel Serwer with the last part. As a non-American, I see it with unease that US government can be lighter on deciding someone's innocence before killing him just because he is not a citizen. It would be wiser if the US raises the bar when it comes to target killing, otherwise it can backslash (at least in public opinion).

Nevertheless I agree with the need of a publicly stated logic and well defined processes to be considered before taking such decisions. I also believe the government should come out and speak clearly about this case as soon as possible in order to avoid further ambiguety.

All this made me reflex on the dangers of a legal system which makes the killing of a US citizen easier than judging him.

[ushistorysage]

Our lack of ability to capture a suspect or prove guilt of one accused of a crime does not give us the right to even establish a criteria in which the government can avert due process. Instead police, military, intelligence, and the judicial communities should focus on improving their skills, technologies, and operations to bring suspects in to prove guilt using due process to deliver justice. In any circumstance, all humans are entitled to due process in our system regardless of the danger to our society especially since our very foundation requires letting the guilty go to protect the innocent. We may not like the outcome, but when we sideskirt our own ideals and refuse to honor them in the worst situations, we destroy our right to live free.

[WndlB]

I am a lawyer, but my specialty is far away from this area.

In fairness, you missed that Wittes IS trying to require an escalated proof threshold. Note, in the first point, "high degree of confidence", "best available evidence" and "heightened internal review". That said, the standard of proof to which such a motion would be subjected is ALSO a matter of considerable importance: there is a grave problem with any standard below 'beyond a reasonable doubt'--and motions are usually subjected to a much lower standard of scrutiny.

[DrStrangelove]

This is fucking hilarious. Here we are, a bunch politigeeks sitting around discussing this as if it's really some sort of hard-to-determine legal issue.

Look, it feels good that this guy is dead. But don't you fucking kid yourselves that this was in any way legal - or that it would have been legal had this guy been German, Pakistani or Japanese. You all know deep down that this was an outrageous abuse of presidential power, unheard of and deeply antithetical to the supposed ideals of this country. You all know it, and now you're trying to figure out ways of proving yourself wrong, intellectually. But you all know that this, no matter how good it feels to kill this asshole, was wrong.

This is how the country is circling the drain. It's all going to shit, and a bunch of wonks sit around discussing the legal merits of the shithole.

[Timberland Waterproof Boots]

thanks for your article,like your blog very much,well done

[cheap jordan shoes]

Keep 'em coming... you all do such a great job at such Concepts... can't tell you how much I, for one appreciate all you do!

[cheap jordan shoes]

Keep 'em coming... you all do such a great job at such Concepts... can't tell you how much I, for one appreciate all you do!

[Jordan Pas Cher]

Salut, où as-tu obtenir cette information peut vous s'il vous plaît de soutenir avec une certaine preuve ou vous pouvez dire quelque bonne référence comme moi et d'autres apprécieront vraiment. Cette information est vraiment bon et je vais dire sera toujours utile si nous essayer sans risques. Donc, si vous pouvez le sauvegarder. Cela va vraiment nous aider tous. Et cela pourrait apporter un peu de bonne réputation pour vous.

[Partner]

Acquire Viagra specifically as prescribed by your physician. Do not acquire in greater or smaller amounts or for more time than recommended. Follow the directions on your prescription label. orderrxpharmacysublingual-viagra-pro-generic.html" Discount Viagra tablets