It may be that the Obama administration thinks that U.S. citizens who join the enemy are entitled to special rules — like those that apply to the police, instead of those that apply to the military. But this would be wrong too. As I explained in the Wall Street Journal last week, ever since the Civil War, our national leaders and the Supreme Court have agreed that a citizen who joins the enemy must suffer the consequences of his belligerency, with the same status as that of an alien enemy. Think of the incentives that the strange Obama hybrid rule creates. Our al-Qaeda enemy will want to recruit American agents, who will benefit from criminal-justice rules that give them advantages in carrying out operations against us (like the right to remain silent, to Miranda and lawyers, to a speedy jury trial, etc.). Our troops and agents in the field may well hesitate in the field, as they will not be able to tell in the heat of the moment whether an enemy is American or not.I call BS. Nobody—nobody—disputes the right of American troops to engage enemy combatants in battle on an actual battlefield. If that's what Yoo means by the heat of the moment—and it seems so—then there's no dispute. If Anwar al-Awlaki had been charging against American troops in Afghanistan, AK-47 in hand, there would be no debate to be had. The chance that an American soldier will hesitate in that moment, wondering if the enemy is an American citizen, is virtually nil. And Yoo—once again—is disingenuous for suggesting so.
The debate comes in murkier areas. If reports are to be believed, al-Awlaki was tracked by American drones for weeks while officials waited to get a clear shot at him that wouldn't result in massive collateral damage. That's admirable if true, but it's also something less than a "heat of the moment" situation: American officials were able to make a considered decision to assassinate the man. And because of that, it's more than fair to question the process by which al-Awlaki was targeted.
But this is the world Yoo inhabits. There are precious few ticking time bombs, yet they always justify extreme action where considered processes might serve Americans better.