From what we know of how it happened, American citizen Anwar al-Awlaki was in a convoy, moving from one hiding place in Yemen to another. From what we know, al-Awlaki was quite good at spouting jihadist rhetoric and inspiring people to join the fight. He may or may not have been in on the planning of attacks. Evidence of that has never been allowed to be seen beyond the highest levels of security clearance. We do know that on September 30, 2011, his hand was not on a bomb trigger, he was not on the phone ordering an attack, and he was not wearing an explosive vest. We do know that he was killed by missiles released from American drones, as was another American jihadi with him. We do know that he had never stood trial for his crimes. We do know that he was not killed on a battlefield, per se, unless the entire world is a battlefield.
And we know that a Justice Department memo offering the legal justification for this action exists. It was released yesterday, in a much-redacted form, in answer to lawsuits demanding a little bit of sunshine in the Obama administration's dank caves of the legal netherworld where our war on terrorists and terrorist associates is waged.
There's much that's disturbing and downright weird throughout the shoulder-brush of an afterthought the memo is. For instance, there's the use of an 1897 definition of murder from a British law book, where we're told that "Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace." The use of the word "killeth" is the least disconcerting aspect of that sentence.
A great deal of the first part of the memo is taken up not with al-Awlaki, but with justifying the use of murderous force within the law. One of the focal points is Title 18 of the U.S. criminal code, especially Section 1119 "Foreign murder of United States nationals." The Justice Department's legal office also wrestled with the notion of the "public authority justification." That's the exception to the law that says if you're a cop, you can kill a guy who pulls a gun on you or is about to kill someone right then and there.
Now here's the awesome part of the memo, the part that essentially comes up with a way to tell the president, the CIA, the military, whoever, "If it feels good, do it." See, according to the legal minds of the Justice Department, if Congress didn't say you couldn't do it, you can do it. That's not an oversimplification. Check it out, from page 17:
"We believe the touchstone for the analysis of whether section 1119 incorporate not only justifications generally, but also the public authority justification in particular, is the legislative intent underlying this criminal statute. We conclude that the statute should be read to exclude from its prohibitory scope killings that are encompassed by traditional justifications, which include the public authority justification. There are no indications that Congress had a contrary intention...Nor is there anything in the text of legislative history of section 1119 itself to suggest that Congress intended to abrogate or otherwise affect the availability under that statute of this traditional justification for killings."
So unless Congress had said, "Oh, and by the way, don't use drone missiles to make a bloody paste out of Americans overseas," it's all good. If Congress had wanted to stop us, it would have.
That's some chilling shit, right there.
It just gets worse as it goes on to come up with any way to mollify people who might think, "Um, this is creepy." For instance, the Rude Pundit's just a poor urban blogger, not some fancy Harvard Law grad trying to make execution by fiat legal, but when the memo cites cases from the Kafkaesque detainee courts at Guantanamo Bay to support the decision, he thinks we have crossed the line from pathetic to skeevy. And then we start to get to all the redactions.
But isn't that just the way this whole thing has been run? From Bush to Obama, we have been told that we can't handle the truth or we don't deserve the truth. Obama supporters think those of us on the left should support him, that he's smart and therefore we should trust him (no, really, people actually say that).
How can we support or oppose a justification if we don't even know fully what it is? Sure, we can piecemeal attack it, like here. But if the answer to anything we want to protest is "You don't know the full story," well, it's just kind of a dickish way to treat your citizens, no matter who you are.
(Correction: An earlier version said that al-Awlaki's teenaged son was killed with him. This was wrong and was deleted. We proudly Hellfired his ass a month later.)