The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen [Anwar al-Awlaki] without a trial.That is strange wording, considering that the reporter, Pulitzer prize-winner Charlie Savage, claims only to have second-hand knowledge of the document. Perhaps he was allowed to read it, on the condition that he not report that he did.
Although the argument for the legality of the killing was multifaceted, it was predicated crucially on the notion that, because Congress authorized the use of military force in response to Al Quaeda, the United States is genuinely at war with the organization. I previously ranted against interpreting the “War on Terror” literally. (I did not know at the time that a U.S. citizen not on the CIA’s “capture or kill” list, Samir Khan, died along with al-Awlaki.) Robert M. Chesney, a University of Texas law professor specializing in national security law, regards the killings as legal, but acknowledges that they are “‘plenty controversial’ among legal specialists.” He says, “What’s tricky here is that many people don’t accept that this is a war.”
Thus I went to the crux when I pointed out that the U.S. indicted Osama bin Laden as a criminal, not a combatant in a literal war, in 1998. Only when the crimes of Al Qaeda became more horrific did the U.S. respond with military action. I insist that a military response to crime does not convert crime into warfare.