In other words, Adam’s fear that “the president can have someone executed on his say-so based on mere suspicion of a crime” does not describe the claimed power properly. The better description would read: “The president has the power to target a U.S. national whom he concludes in good faith is meaningfully at war with the United States, who lies beyond its law enforcement capacities, and whose capture he cannot effectuate without undue risk to forces.”
Now, I don’t mean to suggest that this power is less than awesome. It is terrifying. Indeed, I can think of only a few things in this space more terrifying than a presidency with the power to kill its citizens, even under these very limited circumstances. One of them, however, is a presidency that lacks this power–one barred by law from attacking citizens even when those citizens make war against it and when it has no other available means of neutralizing them.
Really? Wittes finds a world in which the President cannot order the killing of Anwar Al Aulaqi “terrifying”? I think that I need a bit more elaboration on this point, because I’m not sure that I would be able to get past “mildly disconcerted,” which would then be suitably overwhelmed by the aforementioned terror of a presidency with the power to kill its citizens. It seems to me that a legal inability to target Anwar Al Aulaqi for assassination has, at worst, a series of mildly inconvenient consequences; we have to undertake steps to arrest him, or we have to kill him in a genuine battlefield context, or we have to endure his (frankly) trivial contribution to Al Qaeda’s campaign against the United States.
Even if we take this argument to its natural extreme, I’m not sure I find myself “terrified”. The worst case scenario appears to be that there would be real limits on the ability of some future Abraham Lincoln to order the assassination of a future Jefferson Davis with a drone strike. Even at this level, the restriction doesn’t seem to be wholly unreasonable, much less “terrifying.”