Bruce Hoffman

Another Slippery Slope in the War on Terrorism?

The incredible shrinking Washington Post continues to disappoint and surprise readers in equal measure.

Disappoint in that the once mighty front page and robust “Section A” (the main news section) have now been so filleted by financial cut back and retrenchment that a bare bones skeleton of its former grandeur remains.

The surprise is that in the newly news-starved “Section A,” the editorial page can still deliver a hefty punch: zeroing in on the most pressing issues of our time. Yesterday’s editorial, “Target: Americans—Should U.S. citizens who join forces with al-Qaeda be subject to drone strikes?” commendably addresses the legal and moral issues involved in the targeted assassinations of American citizens who become terrorists and, under the 2001 Authorization for the Use of Military Force, enemy combatants as well. “U.S. citizens who take up arms against the country,” the editorial argued, “are enemy combatants and are indistinguishable on the battlefield from other belligerents.”

Citing specifically the case of Anwar al-Aulaqi, the New Mexico-born, firebrand Muslim cleric and senior al-Qaeda in the Arabian Peninsula operative, the editorial continued to explain that

The political, legal and moral calculus of addressing the threat posed by an American enemy combatant such as Mr. Aulaqi changes when he is located outside a recognized war zone. The discussion should be -- and we trust would be -- dramatically different if he were residing in an allied country willing to use lawful means to capture and turn him over.

But when a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used only when other lawful means of apprehending the person are unavailable or too dangerous to pursue. Such decisions should be approved by the president, and the bipartisan leadership of congressional intelligence committees should be notified in advance.

The American Civil Liberties Union (ACLU), however, disagrees. And, last week on behalf of al-Aulaqi’s father, sued in U.S. federal court to contest the legality of assassinating the younger al-Aulaqi. The ACLU maintains that, regardless of the 2001 Authorization, it “would be unconstitutional for the government to carry out such a strike against an American, especially one located outside a recognized war zone.”

The case will soon be adjudicated and doubtlessly appealed, perhaps to the U.S. Supreme Court. In the meantime, the Post’s editorial writers offer their own, not unreasonable, opinion that

U.S. citizens do not lose all their constitutional rights when they head overseas, but they also cannot use their citizenship as a shield when they join enemy forces with the intention of carrying out violent attacks against the country or its interests.

Despite the compelling logic of that statement, it is nonetheless difficult to contemplate all this without some niggling sense of unease.

Let me first be clear that I am not opposed to killing known terrorists who themselves are indisputably up to their elbows in bloodshed or who have inspired and motivated others to violence. This is especially true when they cannot reasonably be captured or apprehended without putting the lives of others—innocent bystanders and ordinary passersby, U.S. military, intelligence and law enforcement personnel, or those of America’s allies, at grave risk.

Al-Aulaqi himself of course has already been directly implicated in several terrorist crimes. He played a pivotal role in the radicalization of Major Nidal Hasan, who shot to death thirteen persons and wounded over forty others at Fort Hood, Texas last November. He has also been closely linked to Umer Farouq Abdulmutallab, who attempted the mid-air bombing of a North West Airliners passenger jet on Christmas Day. Faisal Shahzad, who in May attempted to detonate a vehicle packed with explosives in New York City’s Times Square, has also cited al-Aulaqi’s influence.

The history of the war on terrorism, however, is still being written. Too often during its first nine years, the U.S. government has acted in a similarly bold way—arguing that, in the absence of any other viable options, there was no alternative. Our leaders, accordingly, made choices or issued orders that—however good their intentions or reasonable their decisions seemed at the time— nonetheless have come back to haunt us.

For instance, consigning enemy combatants—terrorists captured on the battlefield and even further afield—to America’s 21st Century version of Devil’s Island at the U.S. Naval Guantanamo Bay, Cuba facility—seemed a great a idea back in 2002. But, today, when we are juridically still struggling to resolve the status of the few hundred or so remaining prisoners incarcerated there—and are unable to close the prison despite widespread agreement on the desirability of doing so—that decision appears in retrospect as problematical as it is now a political millstone hanging from the Obama Administration’s neck.