Oct 10 2011
“Assassination,” Benjamin Disraeli once said, “has never changed the history of the world.” Whether or not it alters the history of the world – and I think a case can be made that it does – its occurrence and the decisions surrounding it have a tendency to consume our politics. In the past few days, the New York Times and Reuters have reported on, respectively, the existence of a secret memo justifying the killing of Anwar al-Awlaki (an American citizen) and the ‘kill panel’ that designated him a target. The exposure of the logic and process behind the assassination of al-Awlaki in such proximity to the actual event suggests a renewed debate is possible. I see two fundamental questions, not easily answered, arising out of such a conversation. One question, which is general (a hat-tip to Professor Crowley here): what is the government obliged to explain to the public after taking such actions? One question, more specific to the context of this moment: how do such events explain the Obama foreign policy, especially in relation to the rule of law?
In Sunday’s New York Times, Public Editor Arthur Brisbane took a first crack at outlining what information the government owes the public, and what research the media owes its readers. His conclusion seems perfectly reasonable:
The public has a right to know, and assess, the legal rationale for these extraordinary and highly visible state killings. The public should have documented details concerning civilian casualties of the drone strikes. And The Times should do all it can to force this information out into the open.
It is hard to imagine what grave threat the federal government imagines might occur upon the release of its legal rationale for taking action against al-Awlaki. Anyone who supports al-Awlaki’s mission would find themselves already angered by the strike and subsequent death; it seems unlikely the enumeration of the legal rational underlying the former would further inflame such individuals. The release of the memo also would not reveal – at least judging from reports on its contents – a broader classified intelligence program, as in the case of the “Torture Memos” written during the George W. Bush administration. The political costs of releasing the memo – at home or around the world – seem relatively low; moreover, the rationale for such a release demands great attention. If the Obama administration believes it can justify the killing of any American citizen, it would seem to me that they should elucidate such reasoning for every American citizen. While specific information regarding individual attacks might be withheld in the interest of protections sources or personnel, the rationale for – and ensuing debate over – should be open and accessible to all citizens.
As we consider al-Awlaki’s death and its ramifications, it is important to consider the insight this event offers us about President Obama’s understanding of the dynamic between the rule of the law and the powers of a wartime commander-in-chief. In considering the narrative several news organizations have given us about the decision to kill al-Awlaki, the most interesting aspect we are able to tease out may be the scope of the legal decision granting the President and his subordinates to move forward with the operation. “The memo,” wrote the New York Times, “was narrowly drawn…and did not establish a broad new legal doctrine.” In fact, drawing from the same article, it appears that the authors of the memorandum outlined multiple legal obstacles to the killing of an American, explaining how each was overruled in this specific instance. This says a great deal, particularly in light of the way we understand the previous administration’s constructions of such memoranda. Particularly in the case of the “Torture Memos,” the process of legal analysis in the Bush administration seems diametrically opposed to the one exposed by the killing of al-Awlaki under President Obama. Rather than treating individual cases that officials felt demanded torture as just that — individual, President Bush’s national security team used such instances as opportunities to establish broad legal doctrine. The fact that President Obama and his team chose the opposite approach, to establish no precedent but the precedent of careful and cautious decision making, gives me a great deal of optimism about the rule of law under this President.
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