Covert Action: Legal Framework

Dan Klaidman on Stephen Preston's Harvard Speech

By Benjamin Wittes
Monday, April 16, 2012, 11:22 PM

My old colleague Daniel Klaidman from days of yore at Legal Times writes in with a guest post on CIA General Counsel Stephen Preston's speech at Harvard Law School. Klaidman, now of Newsweek and the Daily Beast is the author of the forthcoming book, Kill or Capture:  The War on Terror and the Soul of the Obama Presidency, which is being published by Houghton Mifflin Harcourt, will be out on June 12, and promises to be a must-read. Klaidman writes:

Last week, as noted on Lawfare, CIA General Counsel Stephen Preston briefly emerged from the shadows to talk about  how his agency views its obligations under the law.  Preston's speech at Harvard Law School was the latest in a series of public pronouncements by Obama officials seeking to spell out the legal framework that guides and constrains the administration's actions in the war on terror.  It began with Harold Koh's defense of targeted killings to the American Society of International Law back in March of 2010 and and has included important contributions from Defense Department general counsel Jeh. C. Johnson, White House counterterrorism adviser John Brennan and more recently, Attorney General Eric Holder Jr.  Throughout, the administration's national security lawyers have sought to find a balance between transparency and adequately protecting the intelligence community's most sensitive secrets, a fine line that inevitably leaves no one entirely satisfied.  Preston's speech, perhaps unsurprisingly given his institutional responsibilities, was the least revealing of the bunch. It was largely a set of assertions that the CIA is not some rogue agency of the government unbounded by law, but rather "subject to strict internal and external scrutiny."  There was little in the way of concrete information to reassure the public that the CIA is truly committed to the rule of law.  I would have liked to have seen Preston talk about what kinds of legal training CIA operators get and whether there is a robust disciplinary system in place in the event that, say, a drone operator runs afoul of the rules of engagement.

Still, Preston's impulse to show even a little leg is commendable.  And there's evidence that he's a stronger advocate for transparency than his Harvard speech might suggest. Last January I wrote a piece in Newsweek about the internal administration wrangling over whether to air its legal reasoning behind the killing of Anwar al-Awlaki, the American-born leader of al Qaeda in the Arabian Peninsula.  What is not widely knows is that Preston, a self-effacing lawyer with something of a patrician air, played a key behind-the-scenes role in pushing for the Obama administration to go public. The CIA was opposed to the more expansive disclosures advocated by Koh.  It did not want any mention of Awlaki or the kill operation, which was carried out under the agency's covert drone program.  But Preston, along with the Pentagon's Johnson and Koh, were the primary instigators for approving the more narrowly drawn speech that Holder ultimately gave in April.  Preston, who'd joined the CIA at the outset of the Obama administration, weighed in strongly with his new boss, David Petraeus.  The proposal gained serious momentum at a November, 2011 meeting of President Obama's top national security advisers, when Petraeus forcefully backed the idea.  But then the initiative languished in the White House for a period of months.  With Preston's encouragement, Petraeus continued to push for final White House approval of the speech, which came in late January.  There were no overt signs that the White House was opposed to Holder giving the speech (it may have been slowed by the usual bureaucratic crush).  But clearly the top lawyers from Defense, State and particularly the CIA formed a powerful alliance in favor of transparency.