Targeted Killing: Litigation

Drone Strikes and U.S. Citizens: The White House Opts for the Half-Monty Over the Full-Harold

By Robert Chesney
Monday, January 23, 2012, 4:31 PM

Daniel Klaidman at Newsweek, whose forthcoming book on the Obama Administration's counterterrorism policies promises to be must-read material, reports that the decision has been made to go public with some form of defense of the legality of the al-Awlaki strike.  It seems Attorney General Holder will be tasked with giving the speech that will do so, something on the model of Harold Koh's ASIL speech a while back. (Daniel reports that the venue for the AG's speech has not yet been selected; we recommend a guest-post here at Lawfare, FWIW).  Speaking of Harold, you may be wondering what I meant in the post title about the "Full-Harold."  Suffice to say that Daniel's report depicts a spirited internal debate about how specific to be in referencing al-Awlaki as such.  Here's a taste, but be sure to click-through to read the whole thing:

It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

Note that the article suggests that one factor counseling hesitation was concern over what a more robust and public defense would do in terms of exposing the government to greater disclosure obligations under FOIA (and, presumably, in terms of weakening the grounds for asserting the state secrets privilege in the face of civil litigation).  Nice illustration of the tension between proactive disclosures and preserving litigation positions.  Note: a correspondent points out that DOJ has a FOIA deadline coming up (Feb. 1) in relation to all of this, which may be related.