Kevin, when the first sniffs of this came up in February, I wondered how the White House-authorized assassination of an American citizen could do anything but undermine the Obama administration’s argument that water-boarding a foreign terrorist is barbaric and illegal.
And while I share your queasiness over the targeted killing of an American citizen by his government without due process, I still believe what I said at the time in response to a reader — that the aim of that killing surely matters:
Thankfully, it isn’t my job to adjudicate the matter, and my opinions on it are decidedly unsettled (and at times unsettling). I merely wanted to point to the prima facie oddness of a government that finds it acceptable in certain instances to kill American citizens abroad in order to disrupt plots against the republic, but finds it unacceptable to use enhanced interrogation techniques in pursuit of the same end.
Indeed, I intentionally kept my conclusion vague, because I’m unqualified and unprepared to endorse specific rules governing interrogation. And I purposefully didn’t mention techniques like waterboarding, which, even if it isn’t torture, is sufficiently close to torture to avoid being glib about. But I could do both and still open up the logical space between the two positions.
Another reader wondered whether my admittedly shabby argument could be used to justify torturing murder suspects (since it is already permissible for the state to kill them upon conviction). Again, my argument isn’t ambitious enough to justify any such thing. But I should say that the two cases aren’t analogous for a number of reasons, the most relevant of which is that capital punishment is punishment (at least in large part; that’s a whole other argument.). Killing American terrorists abroad is not intended to be retributive, but preventive. As Blair states explicitly in his testimony, American-born terrorists are only considered for assassination if they are involved in plots that pose an active and ongoing threat to American citizens. Mutatis mutandis, it is plausible (and I’d say, sensible!) to reject a technique for use as punishment, but to support the use of that same technique in an attempt to prevent some future harm.