I wish you allowed comments on your blog. Your analysis of this has been very interesting. I think you make a credible argument that the killing of Al Aulaqi was both legal and reasonable under the circumstances.

What I'd like to suggest, however, is that you consider the framework you are arguing in a different context. How would things work differently if Al Aulaqi were actually innocent?

Lets say you're a radical muslim. You think everyone needs to practice your religion. You think America is the great satan. You endorse terrorist attacks. But, you haven't been directly involved in them. You're merely exercising your right to freedom of speech.

Lets say, the U.S. Government goes out and makes a bunch of allegations about you that aren't true. They claim you've recruited terrorists. They claim you've planned attacks. And they say they are going to apprehend you. They are either lying about you because they don't like the things you are actually doing or maybe they have misinterpreted some information or maybe they are being misled by an unreliable witness. Whatever - its not true.

What do you do? You can either surrender or you can run.

If you run, we end up in exactly the same place we're it now with Al Aulaqi, don't we? The US ends up killing you.

The questions is, were you to surrender, can you expect your due process rights to be respected? What can you expect?

I think a lot of the hand wringing regarding Al Aulaqi is the result of reasonable questions that people have about whether or not the current processes would adequately enable an innocent person to deal with a situation where the US government had made false allegations about their involvement with terrorism.

There are two problems:

One is process.

The long military detention of Jose Padilla without due process of law leaves some question as to what process US Citizens might expect. Perhaps these days you'd get a Military Commission? I don't think most Americans understand what grounds can be used to hold people as enemy combatants. Association with people who are terrorists seems sufficient, although association is also a first amendment right.

The other problem is Torture.

A US Citizen surrendering under current policies may be subjected to various kinds of "stressful interrogation" which may or may not be considered torture depending upon your perspective. They could also be rendered to another country where they might be tortured. Given that the US Government hasn't taken responsibility for the Maher Arar case, an innocent person should have no reason to expect the US Government to take responsibility for them either.

Its not clear why an innocent person would rationally choose to subject themselves to these processes. Any rational person would run.