Tough Questions (updated)

Within days of killing Osama Bin Laden, the US military launched a drone attack in an attempt to kill Anwar Al-Awlaki.

For some perspective, here's a little background on Awlaki.

Anwar al-Awlaki is an eloquent Muslim cleric who has turned the Web into a tool for extremist indoctrination. Mr. Awlaki is perhaps the most prominent English-speaking advocate of violent jihad against the United States...

Mr. Awlaki, born in New Mexico in 1971, served as an imam in California and Virginia. He has been the focus of intense scrutiny since he was linked through e-mails with Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 13 people at Fort Hood, Tex., in November 2009 and then to Umar Farouk Abdulmutallab, the Nigerian man charged with trying to blow up a Detroit-bound airliner on Dec. 25. He also had ties to two of the 9/11 hijackers although the nature of association remains unclear.

In May 2010, Mr. Awlaki was mentioned by Faisal Shahzad, the Pakistani-American man accused of trying to detonate a car bomb in Times Square. Mr. Shahzad said he was inspired by the violent rhetoric of Mr. Awlaki, an American official said.

American counterterrorism officials say Mr. Awlaki is an operative of Al Qaeda in the Arabian Peninsula, the affiliate of the terror network in Yemen and Saudi Arabia. They say he has become a recruiter for the terrorist network, feeding prospects into plots aimed at the United States and at Americans abroad.

Much has been made of the fact that the Obama administration has authorized the killing of Awlaki. And the events of the last week have raised the argument once again. Not surprisingly, Glenn Greenwald weighs in. He starts off his article by pointing out that "Barack Obama has continued the essence of the Bush/Cheney Terrorism architecture." His evidence for this? The fact that David Frum (Republican who was George W's speechwriter) said so. Puhleeze.

But whether or not Obama is continuing in the Bush/Cheney tradition really is the heart of the argument I think. Because here's how Greewald describes the situation.

And if someone is willing to vest in the President the power to assassinate American citizens without a trial far from any battlefield -- if someone believes that the President has that power: the power of unilaterally imposing the death penalty and literally acting as judge, jury and executioner -- what possible limits would they ever impose on the President's power?

Those strike me as important questions. But they really rest of how one defines "the battlefield." What are our analogies here? Are we, as Bush called it, engaged in a perpetual "war on terror?" His response was to not only capture and/or kill anyone the US deemed to be suspicious, he invaded 2 countries...acting as judge, jury and executioner of hundreds of thousands of people, many of whom were innocent bystanders.

As Michael Hersh pointed out this week, Obama has taken a very different approach.

Behind Obama’s takedown of the Qaida leader this week lies a profound discontinuity between administrations—a major strategic shift in how to deal with terrorists. From his first great public moment when, as a state senator, he called Iraq a “dumb war,” Obama indicated that he thought that George W. Bush had badly misconceived the challenge of 9/11. And very quickly upon taking office as president, Obama reoriented the war back to where, in the view of many experts, it always belonged. He discarded the idea of a “global war on terror” that conflated all terror threats from al-Qaida to Hamas to Hezbollah. Obama replaced it with a covert, laserlike focus on al-Qaida and its spawn.

By taking a more precision approach to dealing with terrorists, Obama has opened the door to analogies more aligned with our criminal justice system and therefore these questions arise - whether appropriate or not.

Although it doesn't answer all of these questions, it is important to point out that last December a federal judge threw out a case Awlaki's father brought against this order to kill him.

Judge Bates acknowledged that the case raised “stark, and perplexing, questions” — including whether the president could “order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based the mere assertion that he is a dangerous member of a terrorist organization.”

But while the “legal and policy questions posed by this case are controversial and of great public interest,” he wrote, they would have to be resolved on another day and, probably, outside a courtroom...

But Judge Bates rejected the notion that his ruling granted the executive “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.”

“The court only concludes that it lacks capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an ‘operational member’ ” of Al Qaeda’s Yemen branch, “presents such a threat to national security that the United States may authorize the use of lethal force against him,” Judge Bates said.

In an arena such as this where the madness of killing for national/political/religious goals is the topic, I find it hard to grapple with questions from a rational and ethical standpoint. I suspect that what happened on 9/11 took us into the mire of difficult questions in a way that the attack on Pearl Harbor didn't. After all, nations had been declaring war on each other for quite some time by then and most everyone had agreed on the notions about the "ethics of war."

Now Obama's task is to take this current conflict out of the arena of "war." But there are some valid questions about whether or not a traditional criminal justice approach is the best (or only) alternative.

UPDATE: The context for how Obama approaches these questions was laid in his Nobel Peace Prize acceptance speech.

As someone who stands here as a direct consequence of Dr. King's life work, I am living testimony to the moral force of non-violence. I know there's nothing weak -- nothing passive -- nothing naïve -- in the creed and lives of Gandhi and King.

But as a head of state sworn to protect and defend my nation, I cannot be guided by their examples alone. I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake: Evil does exist in the world. A non-violent movement could not have halted Hitler's armies. Negotiations cannot convince al Qaeda's leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism -- it is a recognition of history; the imperfections of man and the limits of reason.