Pundits have for weeks been erroneously comparing the issue of “killing Americans” with drone strikes abroad to the brother-against-brother character of the U.S. Civil War of 1861-1865. It’s time to point out that the Civil War is a false analogy to the drone-execution issue. This false analogy muddies the waters, and the public debate over executive privilege and the people’s rights needs to proceed without it.
There are two basic aspects of the Civil War that make it different from the War on Terror, in the ways that matter to the drone issue. One is an obvious feature of the Civil War:
The South formally seceded from the Union and called itself a separate nation, the Confederate States of America. The Confederacy thus severed its citizens’ compact with the U.S. Constitution. Plotting acts of terrorism doesn’t sever a U.S. citizen’s constitutional rights; it makes him prosecutable under U.S. law, in accordance with the protections afforded him by the Constitution.
An American citizen’s constitutional rights do not, in my view, apply to foreigners who plot or commit terrorist acts against America. My point is not that all terrorists “deserve” constitutional protection in our justice system, if American citizens do. But in terms of where executive privilege stops, in the matter of executing terrorists or in other ways denying them due process under the U.S. justice system, the bright line is American citizenship. Even if the citizen is Anwar al-Awlaki.
The other relevant aspect of the Civil War is less discussed, however. That aspect is its military character. The Civil War was, for the South, about holding territory by force of arms, and administering it as a separate nation. For the North, it was about retaking territory by force of arms. The mode of the conflict was therefore the form in which pitched battle was met in the mid-19th century. The Civil War was about moving armies over territory and fighting for ground.
It was thus inherently about orchestrated opportunities for killing soldiers in pitched-battle combat. Given the objectives on each side, it could not have been about anything else. Lincoln had no intention of merely bottling up the South, absorbing long-term costs – political and military – and letting time be his main ally. The South had no intention of merely accepting “occupation” and fighting a debilitating guerrilla campaign over decades to wear the Union down. Both sides sought to establish sovereignty over the Southern states’ territory as soon as possible, envisioning a future of pacification and peace, according to their separate political concepts.
Given these factors, the necessity for killing Confederate soldiers had a significance to the objective that it does not have in the War on Terror. The only way to win pitched battles on land is to kill the enemy soldiers. That makes them eventually stop fighting, in a given battle. Over time, it reduces their ranks and their scope of action, until their leaders either accept defeat or set themselves up for annihilation. The end-state of this process is the winning side controlling the territory in question and dictating terms to the survivors.
The War on Terror does not have this character. Although it is, ultimately, about whose view of political morality will prevail on territory, the mode of the conflict is not pitched land battle. Therefore, the mere killing of enemy combatants is not inherently significant to America’s objective. It is important to have that clear. We are not advancing our own security, merely by killing terrorists. Read that again, please, and understand it. In the Civil War, it was inherently significant to the military and political objectives to kill combatants. In the War on Terror, it is not.
In Afghanistan, where the American objective has been to put territory under the control of a friendly, moderate local government, it is significant to the objective to kill the terrorists who attack friendly troops and civilians. Those terrorists are acting as guerrillas, seeking to deny us the territory that will fulfill our objective. Their relation to our objective in space and time is what makes it essential to kill them.
But that’s not what Anwar al-Awlaki was doing when he was executed by a drone strike in Yemen. He wasn’t involved in a tactical campaign to deny us territory (as the Taliban are, for example). He wasn’t facing American troops, armed and recalcitrant and posing an immediate threat to their lives. At the time of his execution, there was no tactical, operational, or strategic necessity to kill him to advance the U.S. objective in the War on Terror.
Indeed, the justification raised for killing him has been his terrorist rap sheet: his involvement with terror attempts since 9/11, such as the underwear bomber.This justification is not a military but a legal-punitive one. There is no military, operational necessity to kill Awlaki because of what he has already done. If he is a present threat, the greatest operational use for him would be capture and interrogation. That would advance U.S. objectives in the War on Terror, whereas executing him from a distance does not.
Of course, from a constitutional standpoint, the U.S. could not forcibly interrogate an American citizen. But that is hardly an argument for killing him without due process instead. The U.S. executive should exercise neither power as a privilege over American citizens. Absent a military necessity for killing Awlaki, the president should, in fact, be bound by the Constitution as regards what to do about him.
The War on Terror was always going to pose these problems for us. The more it is fought outside our borders, the fewer of these problems it poses for our constitutional protections. The more it is fought across the rhythm of our daily lives – e.g., with electronic surveillance of our phone calls and emails, with security measures for air travel and mortgage lending – the more of these constitutional-rights problems we will see.
But we have choices about how to approach the problem of radical-Islamist terrorism, and nothing compels us to summarily execute U.S. citizens in pursuit of our objectives. I am even prepared to state categorically that nothing ever will.
If we had attempted to capture Awlaki, and he resisted and could only be subdued by being killed, that would be one thing. If he had been present in a tactical situation threatening civilians, and killing him could have eliminated the threat, it would have been appropriate to simply kill him without further deliberation. If he was plotting a major terror attack, and we knew where he was every day, it would have been useful to track his movements and communications, and roll up the entire operation. Killing him would be no guarantee of averting the attack in question.
But to advance our objectives in the War on Terror – as opposed to stopping an imminent bloodbath – there was and will be nothing to justify the extra-judicial, standoff-distance execution of a U.S. citizen. Accepting such an act on a vague, unexamined premise about the War on Terror is worse than sloppy citizenship: with continued application, it will be fatal to the project of guarding limited government.
In the War on Terror, an execution such as Awlaki’s is, in fact, a legal-punitive and not a military, strategic, or operational matter. At the nexus of the act of killing – the basis for the Civil War analogy – that makes the two wars different, and the analogy false.
We must beware false analogies; Obama’s Homeland Security department has already posited a false analogy between terrorists and law-abiding citizens involved in pro-life advocacy.The American left is currently busy analogizing the average, law-abiding gun-owner to Adam Lanza, the Sandy Hook killer.There will always seem to be some crisis-driven reason why Americans must accept the loss of constitutional limits on government power.Analogies will abound. But each one that makes unfettered government power seem urgently necessary will turn out to be false, as the Civil War analogy does.
**UPDATE**: A friend forwarded me a link to this discussion of the presidential authority issue at the Originalist Blog of the University of San Diego School of Law. It is a very good summary of points on this topic. I will quote just one paragraph to whet your appetite:
Finally, assuming one accepts as a general matter that U.S. citizens have constitutional rights abroad, I don’t see how, under the President’s theory, the power of non-exigent, non-battlefield extrajudicial killing can be limited to overseas situations. If the President believes that someone within the U.S. is an enemy of the state, and he believes that capture is at the moment not feasible, what constitutional principle would prevent the President from using deadly force (apart from a principle that would also limit it overseas)? That prospect should be sufficient to cast great doubt on the whole argument. The most central concern of the due process limit in the eighteenth century and earlier was surely that the king not have power to kill domestic opponents by labeling them enemies of the regime.
That’s the central concern here as well, which is why discussions of drone killings in general, and the assassination of foreigners in general, are extraneous to this argument.
