A Secret Memo, A Secret Panel, A Novel Process

“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.





8 thoughts on “A Secret Memo, A Secret Panel, A Novel Process”

  1. I know I already posted a response to you, Bill. I’d like, however, to leave a shorty “reply” regarding a separate notion, specifically that of assassination (only because you mentioned it). Since 1976, the US has formally banned the use of assassination, either directly by the US or through a 3rd party. The ban has been written into 3 successive executive orders, the most recent signed by President Reagan in 1981, which remains in effect.

    Rather than looking at assassination in the post-9/11 lens, I think it is useful to look at how President Clinton interpreted assassination. In 1998, we launched cruise missiles on targets in Afghanistan associated with Osama bin Laden. We believed that bin Laden was behind the attacks earlier that month on the embassies in East Africa.

    The Clinton administration later stated that one goal of the raid was to kill bin Laden and his lieutenants. Administration officials also argued that their targeting of bin Laden did not violate the longstanding ban on assassinations. Their view, and this is crucial, was based on an opinion written by NSC lawyers that the US could legally target terrorist infrastructures and that bin Laden’s main infrastructure was human.

    If Clinton said bin Laden was equivalent to an electrical grid in order to get around the Executive Orders, than it’s not so hard to see why President Obama has also acted like a contortionist with regard to Al-Awlaki.

  2. I commend the analysis by Mssrs. Nelligan and Sternberger. I encourage others both in my National Security Class and beyond to join in. It is a difficult issue.

    The New York Times coverage of the issue has been excellent. Charlie Savage, through excellent reporting on Sunday, goes through several issues triggered by the action. Was Awlaki apprehendible? In other words, was there an alternative to bring him to justice? It would appear this was not practical. Was this an assassination? The legal analysis seems to suggest at a time of war, this was an authorized action. Was there due process? The analysis seems to conclude he was not considered an ordinary criminal, and the imminent risk to broader society given his participation in operational planning for al Qaeda in the Arabian Peninsula outweighed other considerations. These are consequential yet rational determinations by government, with which American citizens can debate and disagree.

    But there should be a public debate in order to have confidence that government is being held accountable. In fact, there is a vigorous debate underway within government regarding how to respond publicly regarding the issue. The Obama administration has made significant pledges regarding transparency and now it should deliver on those promises. That said, there are difficult issues that need to be resolved. Drone operations, while the subject of great speculation, are secret. Public discussion can trigger corresponding actions in countries within which they occur, such as Yemen and Pakistan. This can potentially complicate and jeopardize future operations, which are clearly in our interest and our allies. So this is a decision that should not be taken lightly.

    But at the end of the day, government has an obligation to explain its actions to its people. This is in fact what government, of, by and for the people is all about. This is what the pledge to always operation within Constitutional boundaries is all about. This is what promising to be held accountable and subject to checks and balances is all about. This is what a promise to operate within the rule of law and duer process is all about. This is what a pledge to avoid undue secrecy is all about. This is what leading by example is all about.

    The Obama administration pledged in its 2010 National Security Strategy to function consistent with these principles. I believe the Awlaki strike was legal and defensible. But there are legitimate questions which government is obligated to address.

  3. This guy was not an American Citizen per sai. He was not loyal to the states, he was an enemy. The US should publicty taken away his citizenship and scorn him.

    No killing of American citizen on american soil.

    congratulation Obama for killing Beenladen.

    seems like a lawyer can kill more people that a cowboy!

  4. I agree with Professor Crowley, though I do take exception to the statement that the “New York Times coverage of the issue has been excellent.” Aside from the Savage article, the Ed Board has been completely silent. In fact, Ben Wittes over at Lawfare has announced a new competition regarding the NYT silence that may appeal to some students in our class:

    (From LawfareBlog)
    A second Sunday paper has come and gone since the Anwar Al-Aulaqi strike, and still no New York Times editorial about it. I guess the killing of two U.S. nationals by their own government isn’t adequately important to warrant comment–certainly not in comparison to such pressing matters as gender equality among lawyers, race discrimination in the New York Fire Department, progress in the movement to save sharks, ongoing problems with the FBI’s watchlisting practices, and, of course, how to measure the coming of autumn and the relationship between Doritos and literary output–all of which matters have warranted Times editorials since Al-Aulaqi’s death.

    So I am announcing the newest Lawfare competition: Since the New York Times editorialists refuse to write their own editorial, Lawfare readers will do it for them.

    Here are the rules: Submissions should not be efforts to put the author’s own views in the voice of the Times but, rather, efforts to characterize–one might even say parody–the Times‘ own editorial voice and positions. Special points will be awarded to those who capture the Times editorial writers’ ability to contradict themselves with equally fervent insistence on two mutually incompatible positions and to insist on courses of action the editorialists elsewhere describe as unlawful. Lawfare will naturally take anonymous entries, since editorials are traditionally written anonymously and since numerous government officials will no doubt want to participate. Entries will be posted at my sole discretion. The winner will receive a prize to be determined–as well as a cc on the correspondence when I send his or her submission to Times editorial page editor Andrew Rosenthal.

  5. Hey Will, I enjoyed this submission and thought it was great to get that quote in ‘The Week’. I think this issue is so important that I wanted to respond to your piece, and I hope you get a chance to look at it.

    I would say that for the most part I agree with your assessment of the assassination. The public has the right to know every detail about any extrajudicial killing. But for one of an American citizen? Where is the precedent for something like that? The memo apparently states that it would be legal only if it were impossible to take him alive. Maybe it WAS impossible to take him alive at that time, but what why did they decide to do it then, in Yemen?

    To say that it’s commendable the administration took more time to think about the legal ramifications of killing Al Awlaki is like saying it’s commendable for the gunmen in a drive-by shooting to have thought about buying a faster getaway car. The Obama administration has said it “may” release the memo, just like it said it “may” release the photographs of Osama bin Laden when they killed him this spring. They never did of course, and they have left the entire process to internal experts, and left the masses to trust them unconditionally. Let me ask you the most obvious question then Will, if the Obama Administration said they had an internal memo that you were working with an international ring of terrorists while on a trip to Lebanon with your mother and you were both killed in a legal drone strike, what would you want the press to say? Where is the justice? You may think the two situations are very different, but I would argue that they aren’t. This needs to be a black and white issue because there simply isn’t enough transparency, nor accountability for it not to be.

    The more we are subject to the government’s definition of security, the more we are subject to it’s control. That is not opinion. What has the TSA done for us? What has the DHS done for us? We have created a fantasy world of fear and false threats of terror (the majority instigated by the CIA) that tells us we need large bureaucracies to keep us safe, all for the sake of creating jobs and growth in our country. We need to abandon the Keynesian belief system that government jobs are the only kind of jobs because we are creating not only stricter laws and limiting ourselves for the sake of security, we are feeding into the notion that big business propaganda is somehow a legitimate way of establishing power. By supporting killings like Al-Awlaki’s, we may feel like we are keeping ourselves safe because we are told that, but we simply aren’t. We are restricting our own ideals of freedom and liberty, and committing international murder at the same time.

  6. Wow, Will! Your analysis is spot on. Great job!

    P.S. I miss you. Come back to Washington

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