Ackerman thinks Ben Wittes’ arguments justifying the assassination don’t pass muster:
What should the evidentiary standard be for determining an American citizen poses a threat even warranting discussion of assassination? I’m not a lawyer. Not. A. Lawyer. So forgive me if there’s a legal step that I’m missing. But this is the question, the one that has to kick in before any of Ben’s process — or anyone else’s — gets applied. We know that Anwar al-Awlaki (and Samir Khan) are noxious propagandists who are obviously guilty of incitement to murder. We know this because of their public writings and videos. Is that enough to warrant assassination? I refuse to accept the word of any member of the Obama administration that they are worse than that. When any member of the administration shows me evidence that they are, then I will consider that they are. But the stakes of killing an American citizen on the say-so of the government are, in my non-lawyer opinion, too grave to accept the mere assurance of a government official. To believe otherwise, in my non-lawyer opinion, is to be cavalier about both life and liberty.
Wittes counters:
I don’t think Spencer is right when he says what the distinction “actually is.” To my mind, at least, the distinction–the legal difference–is one of necessity. Assuming one has properly identified the citizen terrorist (and whether one has presents a separate issue that I will treat later), one is obliged as a matter of due process to neutralize the threat he poses by capture if possible. Only if a capture is not feasible without undue risk to forces or civilians is it consistent with due process to specifically target a U.S. national with lethal force. If the government, instead of capturing Shahzad, had simply shot him dead on the plane in New York, that would have presented a huge constitutional problem–just as I believe it would have presented a big due process problem had Navy SEALS shot Al Aulaqi between the eyes when capture was possible.
As readers know, I’m with Ben on this. If you’re fomenting Jihad, in direct contact with Jihadist mass murderers, like the devout terrorist at Fort Hood, and if you’re in hiding in enemy territory, you are a legitimate target. I think the administration should be more forthcoming about its reasining and intelligence, but I don’t think they made the wrong call.
The Dish 