The Awlaki memo

There was a lengthy debate within the Obama administration about targeting Anwar al-Awlaki, an American-born al Qaeda leader hiding in Yemen, given the expansive questions about a strike’s legality. The NYT‘s Charlie Savage has the scoop today on the secret legal memorandum officials used to defend the operation that killed Awlaki nine days ago.

The report is well worth reading to get a sense of the “extensive interagency deliberations,” which led to a memo that was “narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.”

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him. […]

Mr. Awlaki, who was born in New Mexico, was also accused of playing a role in a failed plot to bomb two cargo planes last year, part of a pattern of activities that counterterrorism officials have said showed that he had evolved from merely being a propagandist — in sermons justifying violence by Muslims against the United States — to playing an operational role in Al Qaeda in the Arabian Peninsula’s continuing efforts to carry out terrorist attacks.

Other assertions about Mr. Awlaki included that he was a leader of the group, which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

What about the ban on assassinations? The lawyers concluded that the ban doesn’t cover the killings of lawful targets in an armed conflict. Laws against murder? Killing a wartime enemy in compliance with the laws of war gets around this, too. Due process? Officials concluded Awlaki’s case could be treated similarly to previous instances in which citizens who joined an enemy force could be treated as non-citizens.

This won’t end the debate, but at least we’re getting a better sense of the administration’s rationale. Why Congress still seems to have no oversight interest in the matter is an open question, especially since the circumstances appear to scream out for some checks and balances.

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