A federal court has finally released the Obama administration's memo justifying the targeted killing of Anwar al-Awlaki, an American citizen living in Yemen who was apparently a top Al Qaeda operative. I think we mostly knew this already, but the memo confirms that the decision to kill Awlaki was based primarily on the Authorization to Use Military Force passed a few weeks after 9/11:
"We believe that the AUMF's authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy authorization within the scope of the force authorization," reads the Justice Department memorandum, written for attorney general Eric Holder on 16 July 2010 and ostensibly intended strictly for Awlaki's case.
Among those circumstances: "Where high-level government officials have determined that a capture operation is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to US persons or interests."
I've never taken a firm stand on the decision to kill Awlaki. Everything I've read persuades me that he was, indeed, a high-ranking Al Qaeda operative, and a dangerous one. If we were engaged in a normal war, there would be no question about our right to treat him like any other enemy combatant.
But we aren't engaged in a normal war, are we? There's no specific enemy, no specific battlefield, and no way of knowing if and when the war is over. The AUMF is open-ended, both in time and geography, and is famously vague about just who it authorizes the president to make war against. It specifies "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001," and that takes in a helluva lot of ground.
Thus, the problem I've always had isn't specifically with the targeting of Awlaki, but with the fact that the targeting was based on such a flimsy legal pretext. However, despite the fact that I'm disappointed in Obama's decision to interpret the AUMF broadly, most of the blame on that score should be directed not at Obama, but at Congress. The AUMF is now more than a dozen years old, and it's long past time for Congress to emerge from its fetal crouch and write a new law specifically designed for our present circumstances. Among other things, it should address the president's ability to target American citizens for killing. If Congress wants to give the president that power, it should debate and pass a law and the courts should rule on its constitutionality. That's the rule of law. And regardless of whether I liked the law, I'd accept it if Congress passed it, the president signed it, and the Supreme Court declared it constitutional.
Instead, as usual, Congress prefers to do nothing. This leaves them free to kibitz if they don't like what the president is doing, or to simply avoid having to take a stand at all. It's shameful.
Read the full Justice Department memo here.