"War" and the Killing of Al-Awlaki

The functional arguments in support of the killing of Al-Awlaki — that he posed substantial, verified threats to the United States and could not reasonably be apprehended and placed on trial — seem fairly strong. There is a different sort of argument, however, that I think obscures more than advances the analysis: that his killing was justified because we are in a “war.” Advocates of the “war” rationale point out that it is not uncommon to target soldiers and leaders of enemy forces. This is even the case, they note, when your own citizens might be serving in the enemy forces. These two claims are true, but they do not show as much as their proponents think they do. The effort to deter and punish terrorists has features that resemble past events called “war,” including most notably the substantial use of military forces in Afghanistan. But it also has other features that raise serious questions about how much one can analogize to past events, including uncertainties about the nature of the “battlefield” outside of Afghanistan, the amorphous category of the “enemy,” the lack of traditional indications of enemy affiliation, and the substantial overlap with criminal law. Moreover, even those who freely invoke the “war” incantation would likely resist some of its potential implications. For example, in past events called “wars” in which the enemy was within the United States, such as the War of 1812 and the Civil War, the U.S. military uncontroversially used force within our borders. There would be significant (and quite justified) controversy, however, if the U.S. government started conducting drone attacks against suspected members of Al Qaeda (or its “affiliates”) within the United States. In its post-9/11 decisions, the Supreme Court has been appropriately attentive to the limitations of the “war” label. The Court’s allowance in Boumediene v. Bush of habeas review for all detainees at Guantanamo seems inexplicable if one has in mind World War II, but of course this is not World War II. Similarly, the plurality’s analysis in Hamdi v. Rumsfeld of due process rights for at least U.S. citizen detainees recognized that labels should not displace consideration of the particular context in question.