MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, you, your laptop and your privacy at the border. But first, the legal fight over a Muslim cleric known as an influential proponent of violence against the United States. Anwar al-Awlaki has been linked to several known terrorists, including the man behind the Christmas Day airline bombing. He's also an American citizen. U.S. officials admitted earlier this year that al-Awlaki was believed to be hiding in Yemen and is on a government kill list. Now, two human rights groups are filing suit on al-Awlaki's behalf.

MR. KOJO NNAMDIThey say the U.S. government cannot kill an American citizen far from any battlefield without trial or conviction. It's a challenge that gets at some of the key questions surrounding the fight against al-Qaeda, including how we define the battlefield in confronting a global movement.

MR. KOJO NNAMDIJoining us in the studio to discuss this is Ruth Wedgwood, a professor of international law and diplomacy at the School of Advanced International Studies at Johns Hopkins University. Ruth Wedgwood, good to have you back.

MS. RUTH WEDGWOODThank you very much.

NNAMDIAlso with us is Arthur Spitzer, legal director of the American Civil Liberties Union of the nation's capital. The ACLU is filing suit against the U.S. government, along with the Center for Constitutional Rights, over the issue of targeted killings. Arthur Spitzer, thank you for joining us.

MR. ARTHUR SPITZERThanks, glad to be here again.

NNAMDIBefore we talk about the lawsuits, let's talk about Anwar al-Awlaki. The New York Times describes him as, quoting here, "perhaps the most prominent English-speaking advocate of violent jihad against the United States." Tell us a little bit about this man, Ruth Wedgwood.

WEDGWOODWell, he's somebody who seems, from the public sources, to have made an evolution. He was indeed born in New Mexico and spent a lot of time in the U.S., preached to various mosques, then went to Yemen. And the allegation is that he has changed his stock and trade from simply being a preacher or a religious philosopher or a proponent of a particular view of Islam to somebody who has become operational. So I think a lot of the discussion we're about to have is what, when and where is -- that line was crossed. Who should make that determination and, as you said, Kojo, where is the battlefield?

NNAMDIHow much do we know about al-Awlaki?

SPITZERWell, you and I don't know very much about him at all. Presumably, there are some other people here in Washington who think they know more. But the phrase you used in introducing his name, linked to, is certainly all the public knows. That apparently there were communications between him and the Christmas Day bomber and the major at Ft. Hood who shot a bunch of people there and perhaps the Times Square car bomb attempt. But what does linked to mean exactly and what evidence does the government think it has? I'm certainly clueless.

NNAMDIRuth Wedgwood?

WEDGWOODWell, in reading up on him from public sources, the most, I think, telling statement I came across was from Undersecretary of the Treasury, Stuart Levey, who was actually a lawyer. And he said quote -- well, he said, al-Awlaki quote, "has involved himself in every aspect of the supply chain of terrorism, fundraising for terrorist groups, recruiting and training operatives and planning and ordering attacks on innocents." And I think it's that last phrase that certainly gives...

NNAMDIPlanning and ordering attacks on innocents. But Art Spitzer, you're a plaintiff in this case. Is al-Awlaki's father Nasser al-Awlaki? What does he say about the allegations of his son's role in al-Qaeda?

SPITZERWell, he says that he believes those allegations are false. And, of course, we all know that parents don't always know what their children are doing, whether grown or teenage and so we're not in a position to say that the father certainly knows better than the Undersecretary of the Treasury. On the other hand, we've seen multiple examples on the war on terror of the United States being profoundly mistaken. George Bush told us that everybody at Guantanamo was the worst of the worst and now that we're finally having real judicial inquiries into those people, it turns out that most of them are nowhere near the worst of the worst. In many cases, the government had no significant evidence about them being bad guys at all.

NNAMDISo let's talk about your lawsuit. You laid out for us, if you would, the basic arguments you're making in your complaint.

SPITZERWell, basically, we say that an American citizen, in particular, can't be executed by his government without some due process under the Fifth Amendment to the Constitution. People who follow domestic law enforcement are very aware that if you're accused, let's say, of murder, you get indicted, you get counsel to help you in your defense. You get a trial by jury. You get lots of appeals. An execution is a very difficult thing for the government to carry out and rightfully so because it can't be undone.

SPITZERSo here, the government is proposing to execute or assassinate an American citizen based on very thin allegations. I mean, that he's been involved in planning and ordering -- I don't know even what that means exactly. He's not a military commander who's in a position to give orders to people, as far as I know. But there's no court involved in this in any way. There's no public statement of what he's accused of. There's not even a public statement of what the criteria are in the opinion of the U.S. government for killing somebody. What is it that they would have to prove? They're silent about that.

NNAMDIWhich brings me to this, Ruth Wedgwood, couldn't the U.S. government simply make a state secrets claim in this case to avoid dealing with any challenges to the whole idea of targeted killings?

WEDGWOODThey may well do that. And there is old case law from the late 19th century saying if a case goes too deeply into sources and methods and delicate issues are hard to put back in the bottle once they're uncorked, that it may not be justifiable. But I think it's an issue of delicacy, in which the U.S. government has to be careful in how it explains what it is doing and justifies what it is doing. Now, I think for the squaring of the circle, in a way in this case, would be to have Mr. al-Awlaki walk out of the mountains in Yemen and surrender himself, either to Yemeni troops or policemen or to American attachés. And if and then Art could have, indeed, I think, his aspiration of having this dealt with in the traditional terms of either a criminal trial or of the specific qualities of the law of war, where you simply detain somebody if there's a sufficient predicate that they're engaged in combat.

WEDGWOODThe difficulty here is he's in the mountains in Yemen. Nobody can get at him. The kind of proof you can get from remote areas, I take it as pretty skinny. The difficulty of prejudicing sources, if you're trying to anticipate a future attack, is a real one. And therefore, the real ideals of due process, which are not to be lightly given up, are in a difficult tension with operational needs. No one wants something like Pinochet, where he eliminated 3,000 opponents...

NNAMDIOpponents...

WEDGWOOD...a Chilean regime and tortured people and 11 percent of Chile emigrated in that period of time. So the very word targeted killing or assassination has a certain froidure, coldness for all of us. But at the same time, there is significant al-Qaeda in the Arabian Peninsular organization, which has been very active and almost taking the place of Bin Laden in Afghanistan.

NNAMDI800-433-8850 is the number to call if you'd like to join the conversation. Do you think the U.S. has the legal authority to add alleged terrorists like Anwar al-Awlaki to a kill list? 800-433-8850 or you can answer that question or ask one of your own at our website kojoshow.org. Send us an email to kojo@wamu.org or a tweet at kojoshow. Art Spitzer, do you think the U.S. government will make the state secrets claim in this case?

SPITZERThat's certainly a real possibility that they'll do that. We're hoping that they won't because we think that this is a question that needs careful public attention in the United States. And while sources and methods of intelligence gathering are understandably protected from public disclosure, the question of, for example, what standards does the U.S. government believe it has to meet before it can order the execution of a U.S. citizen, that shouldn't be a state secret. That's a legal question and not a factual question, whether they've met it in this case or not. It may be more difficult to prove, but they should at least be able to tell us what they think their standards are or should be.

NNAMDIWe reached out to the justice department, which sent us the following statement from Matthew Miller, director of public affairs. "While we cannot comment on the specific allegations in the lawsuit, Congress has authorized the use of all necessary and appropriate force against al-Qaeda and associated forces. The U.S. is careful to ensure that all its operations used to prosecute the armed conflict against those forces, including lethal weapons, comply with all applicable laws including the laws of war. The government has the authority, under domestic and international law as well as the responsibility to its citizens, to use force to defend itself in a manner consistent with those laws. This administration is using every legal measure available to defeat al-Qaeda and we will continue to do so as long as its forces pose a threat to this nation," which tells us basically nothing specific.

NNAMDIBut you also filed suit, Art Spitzer, over the treasury department's requirement that you have a special license to represent al-Awlaki. Where does that stand?

SPITZERThe day after we filed that lawsuit, the treasury department gave a license to represent Nassar al-Awlaki so that we were able to then file this second lawsuit to try to protect his son. But the first lawsuit is not over. The license we have expires in two years and so we would still have to renew it. And it also contains a number of conditions that we think are inappropriate. For example, it requires us to keep records of every transaction that we have with our client and to make those records available upon request to the treasury department, which seems to us like a serious infringement on attorney/client privilege, attorney/client relationships.

SPITZERAnd so we're using that license to go ahead with this second lawsuit, but we're still contesting the question of whether we should be required to have a license at all. The purpose of the statute and the executive order and the regulations involved there were to prevent financial transactions by people whose assets had been frozen because they were designated as terrorists. There's no financial transactions involved in a pro bono legal representation. That is, we're not charging his father anything for the cost of doing this lawsuit. And since there is no financial transaction involved, we don't think the government has any business getting inside of our attorney/client relationship.

NNAMDIRuth Wedgwood this does seem on the face of it like a kind of legal catch 22. The government could have refused to issue the special license to represent Mr. al-Awlaki. Could you weigh in on this issue please?

WEDGWOODWell, they did issue the license so I think probably if you're rank ordering the importance of the issues at stake here, that's a more minor one. I can imagine Chinese wall arrangements where if there were any reporting to Treasury it could be walled off and kept apart from anybody who is involved in other aspects of the criminal case, for example, which is what we used to do when there was both a criminal case and an intelligence operation at the same time. But I do think -- one word I might caveat that Art used -- we're both Yale-ies. We are both, more or less, the same vintage so we have a fraternal (word?) ...

NNAMDIClearly, you know one another, yes...

WEDGWOODMany of the same people. But the word execution, to me, connotes that this is done to punish, that it's done to -- as part of a purported legal system or a system of domestic power. You don't usually use the word execution in the law of war. You do have fatalities. You do target opposing combatants so I do think words matter here. Execution seems to imply you have another way of reaching the person and detaining him here. I think the solution, again, is for Mr. al-Awlaki to walk out of the mountains of Yemen and surrender himself.

NNAMDILet's talk about international law and let me have, Samin (sp?) in Bethesda, Ma., set us on course for that discussion. Samin, you're on the air. Go ahead, please.

SAMINHello, I just wanted to bring up that issue that even the execution, in fact, assassination of individual based on unproven criminal or even criminal actions internationally is against international law. Even if somebody is criminal, they have to be arrested and brought to court and then proven. No matter in what condition. And a living in U.S. where we have the constitutional right of -- that was already stated. So the problem we have is that when we don't challenge the American government, our government where we pay taxes to go and do with any kind of questioning or approved to war and to bomb houses in Iraq and Afghanistan and kill innocent women and children because theoretically there may be a terrorist there, may be a stop asking questions at that point is going to come eventually haunt us and all citizens in America are being taken away as well. The same way now that in the Mexico border, the Americans also enter, the police order guards takes your computer and looks at the content.

NNAMDIThat's a discussion that we will be having later in this broadcast, Samin, when Art Spitzer will stay with us for that part of the discussion. But the first part of the issue you raised, I'd like both Ruth Wedgwood and Art Spitzer to respond to. Ruth, in terms of international law, is the Obama administration operating within its rights or are we in uncharted territory here?

WEDGWOODWell, it may depend who you ask.

NNAMDIYeah.

WEDGWOODI'm sure Art will take a different view. When my friend, Neil Cartial (sp?) who's also a Yale-ie and I was the acting solicitor general of the United States, argued the Hamdan case on behalf of Hamdan, who was Bin Ladin's driver, body guard and RPG toting factotum, Neil characterized it in front of the Supreme Court, two or three times on the -- in the oral argument as a territory-less state-less war, that it doesn't conflict it. It doesn't really fit the land army paradigm that we're used to from World War I or World War II or the Korean war. That indeed al-Qaeda floats around and therefore it doesn't really, easily match the idea of a specific locus and venue that we have. We've never had a targeting court. We never used to targeting court in Korean war, World War I, World War II, Vietnam, going to court, asking who can you target. And the difficulties are timing, again, dealing with the proof, having the revelation of the proof interfering with your ability to get continuing information. No one's ever actually defined the standards. You have to avoid attacking civilian targets, avoid causing undo damage to civilian objects when you're attacking a military target. But no one's ever defined what is sufficient evidence, sufficient proof. When you're a G-I on the battlefield and you are in a fire fight in Fallujah, you don't go to court.

SPITZERThat's exactly right. When you're a G-I on the battle field, you don't go to court. But Yemen is not a battle field. And Ruth is a renowned expert on international law and I’m just a little domestic lawyer here. But if Yemen is a battle field, then so is American University Park. And I don't think we would take it very well if the government of, let's say, the Soviet Union or China said, well, you know, we think this -- an enemy of ours lurking around Washington D.C. may be one of these expatriate critics of their regimes.

NNAMDIDidn't the government of Chile actually...

SPITZERAnd we'll...

NNAMDI...do that?

SPITZERThey exploded a car bomb at Sheraton Circle, that's right, and killed a number of people.

WEDGWOODA friend of mine was almost killed in that, actually.

SPITZERRight. And we didn't think that was very nice at all. Nor did we think it was in accordance with international law. And so for us to be shooting missiles into Yemen, which is not a battle field where soldiers are shooting guns at each other, it seems to me is not the right comparison. The comparison is shooting a missile at somebody in suburban Maryland.

NNAMDIWe're going to take a short break. We'll continue this conversation when we come back. If you have called, stay on the line. We will get to your call. If you'd like to call 800-433-8850, how do you think we should be defining the battle field when it comes to the war against al-Qaeda? 800-433-8850 or go to our website, kojoshow.org. I'm Kojo Nnamdi.

NNAMDIWe're discussing kill lists kept by the U.S. government, especially if they are directed at American citizens, with Ruth Wedgwood, professor of international law and diplomacy at the School of Advanced International Studies at Johns Hopkins University. And Art Spitzer, legal director with the American Civil Liberties Union of the nation's capital, which has filed suit against the U.S. government along with the center for constitutional rights over the issue of targeted killings. Art, the government has been going after alleged terrorists for nearly a decade now. Why did you decide to take on this issue now?

SPITZERWell, this was a case in which government officials apparently confirmed to the media that Mr. al-Awlaki has been targeted for killing in an area far from any area of active conflict, far from any battle field. And he's a United States citizen.

NNAMDISo if Mr. al-Awlaki were hiding out, say, in Afghanistan instead of Yemen, would he be fair game?

SPITZERIt would certainly make a significant difference to our chances of prevailing in a lawsuit, I think. Afghanistan is a battle field…

NNAMDII thought Ruth Wedgwood wanted to interrupt briefly.

WEDGWOODYes, I was going to interrupt and say, why?

SPITZERWell, because it is an area of armed conflict. And you can tell me, but I believe armed conflict is a term of art in international law and the rules are different in an area of armed conflict.

WEDGWOODThe U.S.S. Cole was blown up in the harbor.

SPITZERAnd how many years ago was that?

WEDGWOODIt was a while ago. But al-Qaeda has continued to flourish in Yemen.

SPITZERAl-Qaeda...

WEDGWOODAnd if you're launching -- if you have somebody -- again, I don't know any inside facts on this.

NNAMDISure.

WEDGWOODSo I'm speaking only as -- and I have a human rights side to me, too, so I can argue Art's side also. But nonetheless, putting on my law of armed conflict hat, classroom style, if you have a guy who actually is giving the go order on a attempt to bomb an airliner landing in Detroit airport with the underpants bomber or if you have a guy who is giving a go order to the Fort Hood shooter -- just assume hypothetically, if for the sake of the moment or for the argument, that's true. That -- how do you not characterize that as a battle field? It's an intercontinental attack.

SPITZERWell, surely, it's a criminal act.

WEDGWOODAnd it's an act of war. It's an act of war.

SPITZERI...

WEDGWOODBecause we've never required proof beyond a reasonable doubt in cases...

NNAMDIDoes it matter at all, Art Spitzer, that al-Qaeda has identified the world as its battle field?

SPITZERIf we accept that proposition, then the legal consequences are great -- a matter of great concern. Because should we be launching missiles at people in London? Should we be launching missiles at people in Singapore? They may be anywhere. And should they be launching -- should we say, okay, the world is the battle field and so it's an act of war and not a crime and not an act of terrorism for them to be launching missiles and bombs into the United States? I don't think we want to accept that proposition.

NNAMDIRuth Wedgwood, why do I suspect there would more of a push back if we were launching missiles at an alleged terrorist in, oh, Paris?

WEDGWOODBecause the French authorities, Magistrate Bruguiere, is a very active fellow. They actually have more legal powers than we do now. The Brits, the French, the Singaporeans, all have legal systems and police systems that work. So there's no occasion to either violate someone else's territorial rights, nor to displace their police on counterterrorism systems.

NNAMDIArt Spitzer...

WEDGWOODBut this -- But Yemen has confessed that it cannot control what happens in the mountains.

SPITZERBut -- so it's --so if I understand you, what you're saying is if the authorities in Paris, let's say, refused to go after someone who we thought was operational...

WEDGWOODYemen hasn't refused. Yemen says it can't.

SPITZEROkay. But if the authorities in Paris said, we've looked at the evidence we've gotten from the U.S. state department...

WEDGWOODNo. That would give us -- that should give us great pause and it would give us...

SPITZER...and we don't think that's enough and so we're not going to go after this guy...

WEDGWOODThat's not this case. That's not this case.

SPITZERNo, but you can be a professor and I can be a professor, a fake professor. So you have the authorities in Paris or Oslo or someplace and they say, well we've looked at the evidence you've got against al-Awlaki. We don't think it amounts to much. We're not going to arrest him. And so then we can target a missile at him? That --I don't think that would be acceptable.

WEDGWOODIf Gaddafi were behaving like Gaddafi again and suddenly invited al-Qaeda to take up residence in Tripoli, along with my friend al-Magrahi from the Lockerby case, and refused to do anything about it, that would be a hard case. But in Yemen, it's so remote, so difficult, so archaic. And the Yemeni have been cooperative up to a point. I've tried to get in the mountains. But just like the difficult attack in 2002 in the mountains, where there had already been an attempt to arrest the al-Qaeda member in a fire fight with Yemeni soldiers and the great many Yemeni soldiers have been killed, the government then throws up -- it's the Yemeni government, threw up its hands and said, we can't control this.

NNAMDIArt Spitzer, what's known and what's not known about the government so- called kill list?

SPITZERI certainly don’t know much. Apparently, there is a list. I don't think I've seen any statistics for how many people are on this list. We're only aware, at the moment, of this American citizen. The others are presumably not American citizens. But the main thing we don't know is what it takes to get on this list. That's one thing that I think the government should certainly disclose. We know in this country to be a possible subject of capital punishment, you've got to commit murder, first degree murder. We have no idea what the criteria are for getting on the execution or assassination or whatever you want to call it list.

NNAMDIRuth Wedgwood, I'd like to ask a two-part question in that regard because it seems a key point here is that Mr. al-Awlaki is an American citizen. How important as -- is that point to this discussion? We got an email from Brandy, who asks, "If the U.S. charge al-Awlaki with treason, how would this change matters regarded -- regarding targeting killings? How important is his American citizenship?"

WEDGWOODWell, because he's an American citizen, he has constitutional rights, as well as rights under international law and international human rights law. To be honest, international human rights law is just about as robust as constitutional law is. And a human is a human so I don't think this should necessarily affect how one talks and thinks about this. As I've heard this list described, it's the kill or capture list. And it is, in fact, required in the law of war that you not gratuitously kill somebody.

WEDGWOODYou can only kill if you can't capture. But you are required, under the law of armed conflict, ancient and current, to offer quarter, to offer the opportunity to surrender to anybody who's an opposing combatant. So calling it the kill list makes it sounds like Pinochet's whacking his ideological opponents. I might cavil at that characterization. That's one of those -- it's a useful one for your pleadings, but it's the kill or capture list as it's been described by DOD and the Treasury Department.

NNAMDIArt Spitzer, it's my understanding that you are basing your current argument less on grounds of international law than on grounds of the U.S. Constitution. If Mr. al-Awlaki was not a U.S. citizen, would that change?

SPITZERWell, we brought this case on behalf of a U.S. citizen because we think our position in court will be much stronger. As you know, there's a great debate that's going on the Supreme court and other places now about what role international law and the law of other nations plays in United States law. I think Ruth is right that international law is just as robust, but is it just as binding on United States courts?

SPITZERI think that's an issue and it's an issue on which we hope the U.S. government would agree with us, that it is binding, but we're not so sure it will. But under domestic law, the constitution does not protect people who are not U.S. citizens and are not in the United States. If you're a French citizen in Paris, you don't have rights under the U.S. constitution. But if you're an American citizen in Paris, you do have rights, as far as your treatment by the American government even when you're abroad. And so that's why our case is focused on the U.S. constitution.

NNAMDIRuth Wedgwood, Mr. al-Awlaki has never been accused of planting explosives or directly attacking Americans. At the same time, his advocacy of violence has reported inspired are the people who have done so. How does that change the way a case like his is prosecuted?

WEDGWOODWell, if he was just a sort of a fire and brimstone...

NNAMDIAn influence.

WEDGWOOD...fire and brimstone preacher who recounted what are perceived to be the injuries that the Muslim world has suffered, whether it's the Saracens and the Crusaders or something more recent, that would, I think, clearly not be actionably under anybody's law; international, constitutional. But if it's somebody who actually gives, as it were, to use Art's language, the kill order, if this is the copo -- this is the godfather who says, go and do it, who gives an order of who's in the chain of command, it's very different. Everybody who's ever worked in federal criminal law knows that you don't have to be the person who pulls the trigger. It's enough if you procured, induced, aided, abetted, counseled the commission of a deadly act. And that's what, I take it, Awlaki is accused of doing.

NNAMDIHere is Gene in Tysons, Virginia. Gene, you are on the air. Go ahead, please.

GENEHi, Kojo, good afternoon. You guys seem to be having a rather detailed discussion about whether this is legal and whether or not the federal government can or cannot do this. But I would point out a couple of things. The federal government, for years, has been targeting and assassinating American citizens. And I point you to Fred Hampton, former Black Panther. I'd point you to the Move organization...

NNAMDIWell, wait, back up a second. In both cases of Fred Hampton, that was the Chicago police and in the case of the Move organization, that's how Mayor Wilson Good of Philadelphia lost his job. Because...

GENEIn both...

NNAMDI...in both cases, they were local officials.

GENETrue. But in both cases, the FBI was involved. In both cases, the orders came down from the federal government. J. Edgar Hoover...

NNAMDINo.

GENE...in particular.

NNAMDIDon't talk about a foreign case because a lot of people would say, Art Spitzer, that we know that the CIA tried to assassinate Fidel Castro on numerous occasions. Or was it the FBI? I can't remember which. And -- but it's fairly well known that the U.S. has been involved in assassinations in foreign countries in the past. What makes this different?

SPITZERWhat makes it different is that, apparently, it's been approved at the level of the White House, at least the National Security Council, is what was reported in the New York Times. And whether that includes the Oval Office or not, we don't know. But there was a presidential order sometime after the Fidel Castro attempt that prohibited United States agents from seeking to assassinate foreign leaders. And I think only the president could override that presidential order. But that's what presumably makes this different is that it's been approved at a high level.

SPITZERBut the philosophy behind the earlier order, not to engage in assassination as an element of U.S. foreign policy, I think, was the right philosophy. I think the administration would distinguish this and say, this isn't assassinating a political opponent. This is assassinating, as Ruth was saying, somebody who's, you know, pushing the button to launch attacks on the United States. But all we know is that the executive branch thinks that's true. There's been no check on their -- the quality of their evidence that we demand in any other kind of a context.

NNAMDIRuth Wedgwood?

WEDGWOODWell, Art is not, I don't think, proposing that there be a delegation of this authority to the Foreign Intelligence Surveillance Act court or court that's specialized in Intel. He's asking that it be heard by federal district court, in open court. And that's where the difficulty comes in because indeed, questions have both -- again, delicacy of information, delicacy of source and delicacy of timing, where if you have a -- if you know, say hypothetically, al-Awlaki's got round three up his sleeve and he's going try to do another airliner attack and if a typical court case, as I'm well too aware, takes years, certainly months and months, what do you do in the interim period?

WEDGWOODArt has asked for a preliminary injunction, which means if we had a very good chance to, as U.S. military commanders, to target al-Awlaki, he'd like an American court to enjoin the CIA drone operator, the (word?) commander in CENTCOM from targeting al-Awlaki. And that gets into the operational nitty-gritty of how you quell an attack. It's like saying you think the Japanese attacked Pearl Harbor, well, maybe it was somebody else. Maybe it was an internal dissident and therefore we're going to have a court hearing on whether the Japanese really did it.

NNAMDIArt Spitzer?

SPITZERWell, here's the injunction we've asked for specifically in our complaint. We asked the court to enjoin the defendants, that is President Obama and others, from killing Anwar al-Awlaki, unless he presents a concrete specific and imminent threat to life or physical safety and there are no means, other than lethal force, that could reasonably be employed to neutralize the threat. So if Leon Panetta or Secretary of Defense Gates or the president, in a particular instance, says, we believe that Anwar al-Awlaki is about to present an imminent threat to the life or physical safety of Americans and we have no other way to stop that than to the launch the missile...

WEDGWOODThey should persuade a judge to become the commander in chief.

SPITZERNo.

WEDGWOODThat's the problem there.

SPITZERNo. That's not what we're saying. We're saying we want an injunction that says you can't push the button unless you've determined that he presents an imminent threat and there's no other means to stop him.

WEDGWOODAnd are you -- are you...

SPITZERBut that's not the standard that the U.S. -- as far as I know, that's not the standard the U.S. Government is now employing. From what we read in the press, Mr. Awlaki was put on this kill list or capture or kill list, if you prefer, back in April, March or April, and has been on it ever since. Has he presented an imminent threat at every day between then and now? My guess is probably not. You know, if a cop sees a guy on Connecticut Avenue shooting rounds out of a submachine gun and he yells at the guy to stop and put his gun down and put his hands up and guy doesn't obey and keeps shooting, the officer can pull out his gun and shoot that guy dead. He doesn't have to go to court and we don't think he should have to go to court under those circumstances.

NNAMDIIf, on the other hand, that guy leaves and goes home and three weeks later is sitting in his apartment...

SPITZERYou can't shoot him.

NNAMDIWhat do you say, Ruth Wedgwood?

WEDGWOODWell, you can shoot him, if you have to, to capture him. Remember John Mohammad, right when they moved down here, the snipers were running around D.C., those two guys -- crazy guys. And they caused a lot of damage and injured a great many utterly innocent middle-class people who were minding their business and it was very frightening for a lot of people. If the police had had to use deadly force to capture them, they would have. And I guess where I would question Art is, it's one thing to say that the president should meet the standard of concrete specific and imminent threat and safety.

WEDGWOODBut if you had Barack Obama saying, you know what, I did find that in a classified executive order or classified decision directive, I bet Art's going to want to go to court and try, whether that was a reasonable...

NNAMDIArt Spitzer, you get the last word.

SPITZERWell, our objective is not to say that there necessarily has to be a court trial before Mr. Awlaki can be killed.

WEDGWOODBut he'll -- they'll challenge it after the fact.

SPITZERBut -- but -- we might challenge it after the fact, just as we might challenge a police officer shooting a citizen on the street after the fact. That's a possibility, sure.

WEDGWOODSo...

NNAMDII'm...

WEDGWOOD...Kojo, just one -- one last -- basically, not -- this has been an overused medium in the last ten years of political debate. But at some point, commander in chief power has an acuity and a -- just an instantaneous judgmental necessity that doesn't (sounds like) admit a trial of court hearings.

SPITZERAnd there's tons of protection for that kind of thing in the courts.

NNAMDIAnd I'm afraid that's all the time we have. Art Spitzer is legal director with the American Civil Liberties Union of the Nation's Capital. Art Spitzer, thank you for joining us.

SPITZERThank you, Kojo.

NNAMDIRuth Wedgwood is a professor of international law and diplomacy at the School of Advanced International Studies at Johns Hopkins University. Ruth Wedgwood, thank you for joining us.

WEDGWOODThank you, Kojo, and for this Yale reunion. (laugh)

NNAMDIArt Spitzer, stick around for a while, because when we come back, we're going to be talking about personal computers, laptops in particular, and whether or not they can be inspected and seized at the U.S. Border. I'm Kojo Nnamdi.