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What Should the Administration Say? The Canonical National Security Law Speeches of the Obama Administration Senior Officials and General Counsels

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Thursday, April 19, 2012 at 10:52 AM

Several readers have made the good suggestion of creating a list of the “formal” or even (arguably, meaning in the opinion of the Readings Editor) “canonical” statements of the Obama administration regarding: national security and counterterrorism generally, use of force, targeted killing, (hypothetical) drone programs, covert action, targeting of US citizens abroad, and related national security law and policy.  Lawfare has now done so as a “Readings,” re-formatted in a post dated June 11, 2012.  “Formal” here means speeches that seem to be clearly statements of formal legal policy – statements and that appear to have been the subject of interagency review.  These linked speeches deal with targeting and use of lethal force, in domestic and international law, and both jus ad bellum and jus in bellow issues.  (I will post separately a links-list of statements dealing with trials in military commissions.)

As I suggested in an earlier post (picked up by Ben), the best way to approach the administration’s national security and law speeches is to take them together, as a combined statement of US government legal policy.  I very much doubt of course there was any long set plan to make these speeches by different GC’s. Much more probably the administration sensed, under the pressure of such events as the Bin Laden raid and the Al-Awlaki strike, a need to add more to what had previously been said.  But I do think, reading the speeches together, that they fit together as a mosaic of US government policy. “US government,” rather than “Obama administration,” is the correct term here. These are formal statements of the US government, as well as opinio juris in explanation of state practices, that will likely have importance down through successive presidencies.  This would be in much the same way that, for example, that then-DOS Legal Adviser Abraham Sofaer’s 1989 address on national security and counterterrorism, later published in the Military Law Review, has continued to resonate all the way down to today, as part of the US government’s internal jurisprudence on international law and foreign affairs.

Moreover, as former Legal Adviser to DOS John Bellinger says in a comment on this list, many of the legal policy positions adopted by the Obama administration are rooted in the evolving policy of the Bush administration, particularly in its later years; there is a great deal of continuity here across administrations.  As Harold Koh has remarked in many speeches in his tenure as Legal Adviser, one comes to such positions not as a free agent, but as a fiduciary standing in a long line of internal precedent and a body of prior practice and pronouncements, which shape and constrain the long-term trajectory of the US government and which one is not free to simply ignore or rewrite.

This is a deep and important insight, and one that academics (like myself) tend to downplay – with a cost in understanding the institutional mechanisms of continuity of US government policy across administrations.  That’s also why I think the proper term for the role Koh describes is “trustee” or “fiduciary” over generations, to emphasize its profoundly institutional commitment.  But if one prefers a description in au courant academic terms, one can talk about “de-trust” and “reputational costs” to the United States from having policies in key matters of foreign affairs and national security that turn out to be ad hoc and personal to presidents and their administrations and finally unstable and impermanent.  This reduction of national institutions to transactional terms, however, seems to me to miss the point.  In any case, the effect of these “conserving” institutional mechanisms is that this collection of speeches, separately and as a body, are likely to shape the legal policies in these topics – for a perhaps surprisingly long time .

The point of these speeches is not to reveal secrets, of course.  Whether this or future administrations will evolve toward something more than general legal policy statements and assertions about practices that are not themselves revealed or even “acknowledged,” is a matter of time and conjecture.  While having called in several articles and many blog posts for greater transparency in the process of targeting in “intelligence-driven uses of force,” as I have sometimes called them, I am actually highly sympathetic to the administration’s concerns about revealing very much.  And I am quite in agreement that the decision about what to reveal and what is too revealing is, by its nature, one that finally rests with the executive; to be perfectly plain, I disfavor a judicial role, favor a revamped and in some ways more formalized Congressional oversight role to address different kinds of operations, but finally believe that these decisions are essentially executive with political branch oversight.

In addition, however, I think the many critics of these speeches also fundamentally misunderstand their role – and why there is considerable repetition of the same assertions about law, facts, and policy.  The speeches are not just “informational” – they are also, and in many respects more importantly, acts of opinio juris. Part of the repetition by different senior legal officers of the US government is to reinforce the same message as an official act – that the US government stands behind these views and policies.  From the standpoint of creating a formal legal record of the views of the US government, a one-off speech, even by the Attorney General or the DOS Legal Adviser, is not the same as speeches partly giving different parts of a legal policy mosaic – but also driving home the same basic points as the considered legal view of the US government.That said, there are three basic clusters of questions raised by the critics.  As a review of the reporting and editorial commentary after each of these speeches, as well as looking, for example, to the exchange between Deborah Pearlstein at Opinio Juris and Bobby Chesney here at Lawfare, each of these areas provokes major disagreement as to fundamentals:

The first is a question of the ethics of releasing information on these matters – the manner by which the substance of legal policy is conveyed.  To start with, are “speeches” enough?  After all, as Charlie Savage said with some derision, they have no footnotes or legal citations – though, one should note, they are a venerable medium for the conduct of foreign relations, alongside public and private diplomatic communications; the idea of releasing internal government legal opinions as a way of announcing the “considered legal view” of a government to the world, rather than through a speech or other statement, is actually the novelty here.  Still, shouldn’t the administration release the legal opinions prepared by OLC or other legal advisers?  Perhaps any records of any of the internal officials involved in decisions to put someone on a target list?  The point of the criticism at bottom is to say that mere speeches filled with assertions and declarations are not by themselves sufficient.

This is essentially to raise the ethics of government secrecy – the flip side of releasing information and in what manner.  This is, to my thinking, the tradeoff in governance between the coherent exercise of authority to the body-politic, on the one hand, and accountability to the same for the way in which authority was exercised.  And it does have to be said that of all these mechanisms, the least satisfactory – because it satisfies neither the requirements of enhancing legitimate authority nor of formal political accountability – is the one relied upon far too much by the Obama administration, that of formal denial but informing by leaks to journalists.  As I have said elsewhere, it amounts to conducting foreign policy by leak, and it tends to undermine legitimacy and the rule of law.

The second is a question of process – but it goes not to the manner in which explanations are released, if at all, but instead goes to the questions of who decides, the bureaucratic process of decision both who and how and on what standards and criteria, who reviews those substantive decisions and how.  Which is to say, is the executive’s internal decision-making and review process sufficient, backed by Congressional political oversight.  Alternatively (not to put to fine a point on it), shouldn’t there be judicial review of these decisions to authorize lethal force, in some fashion, at least in some cases such as those involving US citizens as targets?

The third is a question of the substance of the law at issue here.  This looks to both domestic and international law, and to the resort to force issues (ad bellum) as well as the manner of their conduct (in bello).  Applied to targeted killing, drone warfare, covert actions, etc. – are these correct, or at least legally plausible, claims, both in principle and as applied?

 

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