Sunday’s report on the Obama administration’s secret legal justification for the killing of Anwar al-Awlaki shows just how dangerously confused they have become about the rules of war. All of this comes, of course, with the caveat that we are only going on secondhand descriptions of the Office of Legal Counsel opinion (and we should at least note, in passing, that this administration’s members attacked the Bush folks for not making similar national-security documents public, and have already refused to make public their legal opinions that laughably found the Libya conflict not to be a “war”).
Let’s give partial credit where it is due. Apparently the Obama administration argues that al-Awlaki was a legitimate target because he is a member of an enemy engaged in hostile conduct against the United States. At least Obama has figured out that the war on terrorism is in fact a war, and that it is not limited just to Afghanistan. We should be thankful that Obama officials have quietly put aside the arguments they made during the Bush years that any terrorist outside the Afghani battlefield was a criminal suspect who deserved his day in federal court. By my lights, I would rather the Obama folks be hypocrites in favor of protecting the national security than principled fools (which they are free to be in the faculty lounges both before and after their time in government).
But the administration’s former worldview of terrorism still infects their decisions, to the country’s detriment. According to the reports, the Obama administration believes that force could only be used against al-Awlaki because arrest was impractical and al-Awlaki posed an imminent threat of harm to the United States. This is plainly wrong. It may make for good policy, especially toward American citizens who make the mistake of joining the enemy, but there is no legal reason why a nation at war must try to apprehend an enemy instead of shooting at him first. Every member of the enemy armed forces and leadership is a legitimate target in wartime, regardless of whether they can be caught or whether they pose an imminent threat. In fact, the Obama administration continues to confuse war with crime — the idea that you must try to arrest first and can only use force against an imminent attack is the standard that applies to the police, not the military.
Think of the operation to kill Admiral Yamamoto in World War II. He was well behind the lines, flying from one military base to another. He didn’t pose an “imminent” threat of attack on the United States at that moment. The United States did not need to ask whether it could have forced Yamamoto’s plane down first and captured him. It was allowed to kill him, just as it could kill any other member of the Japanese military, regardless of his threat.
It may be that the Obama administration thinks that U.S. citizens who join the enemy are entitled to special rules — like those that apply to the police, instead of those that apply to the military. But this would be wrong too. As I explained in the Wall Street Journal last week, ever since the Civil War, our national leaders and the Supreme Court have agreed that a citizen who joins the enemy must suffer the consequences of his belligerency, with the same status as that of an alien enemy. Think of the incentives that the strange Obama hybrid rule creates. Our al-Qaeda enemy will want to recruit American agents, who will benefit from criminal-justice rules that give them advantages in carrying out operations against us (like the right to remain silent, to Miranda and lawyers, to a speedy jury trial, etc.). Our troops and agents in the field may well hesitate in the field, as they will not be able to tell in the heat of the moment whether an enemy is American or not. Obama still remains trapped by his liberal pieties, and those biases will reduce the reach of American arms and bless the enemy with undeserved advantages.
— John Yoo is a law professor at the University of California, Berkeley and author of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.