Charles Krauthammer writes: “Once you take up arms against the United States, you become an enemy combatant, thereby forfeiting the privileges of citizenship and the protections of the Constitution, including due process. You retain only the protection of the laws of war — no more and no less than those of your foreign comrades-in-arms.” Krauthammer, like practically everybody who has written about the case of Anwar al-Awalaki, Samir Khan, Abdulrahman al-Awlaki, and other American citizens who have been or may be put to death by the U.S. government, is begging the question. Anwar al-Awlaki certainly was affiliated with al-Qaeda and unquestionably propagandized and organized on behalf of the organization, but it is far from clear that that is the same as “taking up arms against the United States.” And even if we conclude that he did in effect take up arms against the United States, the case is hardly clear-cut enough to justify unilateral executive action with no review and no constraint imposed by the separation of powers.
Anwar al-Awlaki was first and foremost an al-Qaeda propagandist. He was a preacher and a blogger who first began to provoke U.S. authorities through the online bile that earned him the faintly ridiculous sobriquet “the bin Laden of the Internet.” Was he an active participant in planning acts of terrorism against the United States? The FBI did not think so, at least in the wake of the 9/11 attacks; the bureau interviewed him four times and concluded that he was not involved. The Defense Department famously invited him to dine at the Pentagon as part of its Islamic-outreach efforts, and in 2002 he was conducting prayers in the U.S. Capitol. Throughout the following years, al-Awlaki became a sort of al-Qaeda gadfly, dangerous principally because he was fluent in English and therefore a more effective propagandist. It was not until the first Obama administration that al-Awlaki was promoted by U.S. authorities from propagandist to operations man. You may remember the context: The Obama administration had been planning to try the 9/11 conspirators in New York City when the country was thrown into a panic by the machinations of would-be underpants bomber Umar Farouk Abdulmutallab. The Obama administration made an interesting about-face: Whereas it had been planning to try Khalid Sheikh Mohammed and his coconspirators in Manhattan — definitively turning our national back on the hated Gitmo and all it stands for — the administration used the Abdulmutallab case to argue that it could do far worse to Anwar al-Awlaki than send him to Gitmo. According to the administration, Abdulmutallab had sought out al-Awlaki in Yemen, and al-Awlaki had blessed his bomb plot and had even introduced him to a bomb-maker.
That, according to the Obama administration, is what justified treating al-Awlaki as a man-at-arms, earning him a place on the secret national hit list.
If sympathizing with our enemies and propagandizing on their behalf is the equivalent of making war on the country, then the Johnson and Nixon administrations should have bombed every elite college campus in the country during the 1960s. And as satisfying as putting Jane Fonda on a kill list might have been, I do not think that our understanding of the law of war would encourage such a thing, even though she did give priceless aid to the Communist aggressors in Vietnam. Students in Ann Arbor, Mich., were actively and openly raising funds for the Viet Cong throughout the war. Would it have been proper to put them on kill lists? I do not think that it would. There is a difference between sympathizing with our enemies and taking up arms against the country; there is even a difference between actively aiding our enemies and taking up arms against the country, which is why we have treason trials rather than summary execution.
The question of whether al-Awlaki in fact took up arms against the United States is unanswered, at least in my mind. The evidence suggests that he was very much the “bin Laden of the Internet” rather than a man at arms. What perplexes me is that so many conservatives trust the same government authorities who got it so spectacularly wrong about al-Awlaki the first time around — feting him at the Pentagon, treating him as an Islamic voice of reason — to get it right the second time around. This is not a libertarian criticism but a conservative one. It is entirely possible that the same unique strain of stupidity that led to al-Awlaki’s being invited to the Pentagon as an honored guest of the U.S. military is alive and well in the Obama administration. This is precisely why we have institutions such as the separation of powers, congressional oversight, and trials. Killing a U.S. citizen in the heat of battle is one thing, but Al-Awlaki was not killed in a battle; he was not at arms, but at breakfast. Enemy? Obviously. Combatant? Not obviously.
If we accept the rest of Krauthammer’s argument, we still need an operative definition for “taking up arms against the United States.” I have not heard a convincing one, and I have not heard a convincing case that the president should be empowered to make these decisions free of oversight from at least one of the other branches of government. Andy McCarthy’s argument that the judiciary should remain at arm’s length from question of national defense is persuasive, but our constitutional arrangements clearly demand that Congress have a substantial role in questions of war, which only Congress is constitutionally empowered to declare.
Krauthammer also suggests that those who see the containment of terrorism as a law-enforcement matter rather than as warfare are “living on a different and distant planet.” A few thoughts about that: I do not think that anybody honestly thinks that combating terrorism is solely a question of warfare; after all, we do investigate terrorists, charge them with crimes, and lock them up. Sometimes that makes perfect sense; we did not declare war on militant peckerwood kookery in the wake of the Oklahoma City attack. We use military tactics when appropriate, we use intelligence tactics where appropriate, and we use law-enforcement tactics where appropriate; questioning the balance of those three does not a space cadet make. Those who blame the Clinton-era reliance on the law-enforcement/intelligence paradigm for allowing al-Qaeda to plot 9/11 might consider the possibility that what was lacking during the overlawyered Clinton years was not sufficient war footing but plain competence. If our law-enforcement and intelligence agencies — particularly the State Department — had been doing a minimally competent job vis-à-vis visa overstays and application screening, at least 15 of the 19 9/11 hijackers would not have set foot on American soil, and we would have been spared an enormous toll in blood and treasure. Law-enforcement and intelligence tools can be very effective against terrorism, provided you do not entrust them to incompetents.
UPDATE: Andrew C. McCarthy writes to assure me that under current federal law, Jane Fonda would indeed be considered an “enemy combatant” and therefore eligible for a place on the secret federal kill list. I suspect that whether you regard that as a sign of progress or a sign of regress communicates a great deal about your conception of citizenship.