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Two Sharply Different Commentaries on the White Paper

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Wednesday, February 6, 2013 at 9:20 AM

Eric Posner and Jeff Rosen have sharply different takes on the White paper. 

Jeff is outraged:

The Justice Department white paper released on Monday by NBC News is the public’s first direct glimpse at the legal reasoning that the Obama administration relied on in using a drone strike to kill Anwar al-Awlaki, a U.S. citizen living in Yemen. The memo’s arguments are troubling on many levels. Although the Obama administration’s brief is directed at the assassination of Americans abroad, the arguments it offers could apply with equal force to the assassination of Americans at home; lawyers for the Bush administration who tried to justify lesser outrages have been pilloried for supporting torture. But perhaps most troubling is the administration’s attempt to redefine the idea of the kind of “imminent threat” that can justify a targeted assassination. . . .

There are other reasons to object to the administration’s justification of targeted assassinations—including its questionable claim that they are legally supported by Congress’s authorization of the use of force after 9/11. On pragmatic grounds, the administration’s brief is a disaster: As the Church Commission found after studying the attempted assassinations of Castro, targeted killings are likely to produce an international backlash that threatens far more American lives than they protect. But, as a legal matter, the casual, and unpersuasive, attempt to read out of American constitutional law the principle that government can only kill citizens in order to prevent imminent death or violence in return is the most objectionable of all.

Eric thinks the outrage is unwarranted:

So far, the reporting on the leaked white paper from the Justice Department about drone attacks clearly assumes that we are supposed to be outraged by the Obama administration’s legal theories, just as we were supposed to be outraged by the Bush administration’s. And outrage is being dutifully ginned up. But the memo is utterly conventional as legal analysis; its arguments could easily have been predicted. . . .

Obama and Bush administration lawyers have stretched the Constitution and traditional rules of international law to accommodate the threat posed by terrorism. Some people will say they violated the law. But given the political consensus supporting these moves within the U.S., it is more accurate to say that the law has evolved. It gives the president the discretion he needs, or at least wants, to address an amorphous threat. Let’s hope he uses that discretion wisely.