Yes, We Are At War, Ctd

Scott Horton's contribution to the debate (which I cited before here) focuses on whether a sufficient effort has been made to capture Awlaki rather than kill him, a point I did not address in my original post and which is certainly worth a response from the administration:

No doubt the government has concluded that al-Awlaki is a heinous figure who has committed serious crimes and should be made to pay for it. But for all of the massive operations recently undertaken in Yemen, I see no evidence yet that the government is trying to apprehend him and charge him for any criminal acts–even though it has spelled out facts suggesting that it could easily do just that. Is the rationale that a bullet to the head or a bomb dropped on his house would be far more expedient than an indictment and a trial? That sends a chill down my spine.

It seems increasingly that the Obama White House is using the al-Awlaki case to establish a new principle: the president’s power to order extrajudicial executions of American citizens. I don’t for a second question the principle established in Quirin, and I believe that the president can in some circumstances target and remove figures in a command-and-control position over hostile forces even if they are removed from a conventional battlefield. But I am deeply suspicious of the need to add to the president’s theoretical powers by killing a U.S. citizen in Yemen who could certainly be captured, brought back to the United States and put on trial.