There might not be anything very new in the memo that the White House's Office of Legal Counsel produced in in 2010 to justify the killing Anwar Al-Awlaki, and that the Justice Department finally released yesterday in response to lawsuits brought by the ACLU and the New York Times.

But there is something very, very old.

And that is murder.

I will leave it to lawyers like the ACLU's Jameel Jaffer to discern "the entire body of secret law" lurking in the memo's redacted footnotes, and to the reliable editorial writers at the New York Times to pronounce the legal reasoning "thin" and "slapdash." To a civilian with more than passing interest in the issue of targeted killing, what jumps out immediately is the memo's attempt to grapple with the question not of whether the killing of a U.S. citizen without trial is constitutionally justifiable but whether it constitutes outright murder.

And I do mean immediately. The factual justification for killing Al-Awlaki that originally commenced the memo has been redacted. But the memo — which was written by newly confirmed federal judge David Barron — begins its legal argument with this sentence:

"We begin our legal analysis with a consideration of section 1119 of title 18, entitled 'Foreign murder of United States nationals.'"

There have been many public defenses of the Obama Administration's policy of targeted killing, mustered by the Administration's emissaries from the State Department, the CIA, the Department of the Defense, the Department of Justice, and the White House itself. And the arguments they have advanced have much in common with the arguments advanced by David Barron in the OLC memo. But none, to my knowledge, have ever acknowledged that the real question at issue in the killing of Al-Awlaki — and by extension drone killings in general — is the question of whether by killing him the White House was murdering him.

Of course, Barron argues that it was not, and did not. He argues that the very definition of murder, as the "unlawful killing of a human being with malice aforethought," presupposes that such a thing exists as a lawful killing, and then he explains why the killing of Anwar Al-Awlaki would be lawful. Barron invokes something called the "public authority justification" to say that given the "maximal" powers granted the President by Congress when it passed the Authorization for the Use of Military Force in 2001, the killing of Al-Awlaki would not be "murder" any more than a police officer going very fast in pursuit of a criminal would be "speeding."

But in fact the specter of murder — or at least of assassination — is what has haunted U.S. drone policy from the start, given that many of those President Obama has signed off to kill are killed far away from any battlefield, and are often both unarmed and in the midst of carrying out the duties of what might be called daily life. The killings may be useful in advancing the national interest; they may even protect U.S. citizens. But they are usually not carried out "in the heat and exercise of war" that makes killings on the battlefield legal. They are cold-blooded, and it's their cold-bloodedness — along with the expansive powers that permit its exercise — that makes them feel at best un-American and at worst frankly homicidal.

Barron struggles mightily to banish the specter of murder from the pre-emptive and non-judicial execution of Anwar Al-Awlaki. He struggles so mightily that he uses the word murder 44 times in the course of the memo, until it becomes a drumbeat, and, finally — amidst all the redactions and all the secret law existing in empty spaces — the memo's tell-tale heart.

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