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Kenneth Anderson on Charlie Savage’s Story and Secrecy

Sunday, October 9, 2011 at 8:20 AM

I was planning to write a piece this morning pointing out that Charlie Savage’s story–to which I linked last night and which describes in some detail the legal rationale in the OLC opinion authorizing the Al-Aulaqi strike–actually heightens the problem of the administration’s refusal to discuss the drones program in public. But Ken Anderson has beaten me to it over at Opinio Juris:

As Jack Goldsmith and Ben Wittes have argued at Lawfare, and I have argued here, although it is certainly helpful to have a summary in the press about the issues discussed in the secret memo and their resolution, the fact that it is merely leaked (quite apart from not making available the actual text) is a grave part of the problem here.  If it can be shown to press people and written about at length, then it should be made available publicly, as official policy and part of the process of defending the policy. Leaks de-legitimize policy over the long run, and reforms to the accountability and oversight of “covert” actions that are not truly covert need to provide some mechanism for officially releasing information on their legal justifications.It’s good that this information is out there; it is bad that it was put out there through leaks.

This is exactly right. Someone clearly went through the OLC opinion in great detail with Charlie, who describes it section by section and argument by argument. He not only mentions its principal authors–David Barron and Marty Lederman–he mentions its length (roughly 50 pages), and those who have spent  time reading OLC opinions will recognize immediately in his story the structure of a typical OLC memo in his description. The memo is narrowly focused on the Al-Aulaqi case in particular, not a general authorization to kill U.S. citizens associated with the enemy. It first describes the intelligence that makes him targetable:

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

It then considered possible obstacles and rejected each in turn.

Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

federal statute that prohibits Americans from murdering other Americans abroad, the lawyers wrote, did not apply either, because it is not “murder” to kill a wartime enemy in compliance with the laws of war.

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility.

Then there was the Bill of Rights: the Fourth Amendment’s guarantee that a “person” cannot be seized by the government unreasonably, and the Fifth Amendment’s guarantee that the government may not deprive a person of life “without due process of law.”

The memo concluded that what was reasonable, and the process that was due, was different for Mr. Awlaki than for an ordinary criminal. It cited court cases allowing American citizens who had joined an enemy’s forces to be detained or prosecuted in a military court just like noncitizen enemies.

It also cited several other Supreme Court precedents, like a 2007 caseinvolving a high-speed chase and a 1985 case involving the shooting of a fleeing suspect, finding that it was constitutional for the police to take actions that put a suspect in serious risk of death in order to curtail an imminent risk to innocent people.

The document’s authors argued that “imminent” risks could include those by an enemy leader who is in the business of attacking the United States whenever possible, even if he is not in the midst of launching an attack at the precise moment he is located.

There remained, however, the question of whether — when the target is known to be a citizen — it was permissible to kill him if capturing him instead were a feasible way of suppressing the threat.

. . .

The memorandum is said to declare that in the case of a citizen, it is legally required to capture the militant if feasible — raising a question: was capturing Mr. Awlaki in fact feasible?

I doubt very much that this is an entirely unauthorized rogue “leak”–in the sense that there are secrets here that the government very much wants to keep but that some individual decided on his or her own to disclose. I suspect, rather, that this is a situation in which the government–or some senior official therein–has decided to disclose the memo without disclosing it. This approach is fully consistent with the larger strategy of the administration on the subject of drones and targeting killing–to talk about the subject a great deal by way of claiming credit for big counterterrorism successes but to do so without talking about it at all officially. And it’s wrong. Either this program is a secret, in which case the government should stop talk to Charlie about it, or it’s not a secret, in which case it should figure out what is releasable in the memo and release it. There is no middle ground here–no legitimate middle ground, anyway–in which the right approach is coyness.