I agree with Ben and Susan that there is little new of substance (but more detail) on imminence and other issues in the DOJ White Paper on targeted killing, and I said as much in my reaction to the White Paper in The New Republic. But I disagree with their claim that the White Paper is “no big deal,” or that it should “come as no surprise.” It is a big deal, I think, because it fills in the details of the legal arguments made in general terms in leaks and speeches. As I said in TNR:
And the legal details matter. To say that the administration has taken its legal duties seriously is not to say that its legal interpretations are beyond question. The truth is that the administration’s actions in this form of warfare raise difficult questions of constitutional and international law. Especially since courts will likely not have a role in reviewing these actions, it is vital that the legal basis (and to the extent possible, factual basis) for our targeted killing policy be publicly debated so that Congress and the American people can decide in an informed way if they approve or if they wanted a deeper congressional role.
As for surprise, one lesson of the reaction to the White Paper is that the public in general, as well as prominent scholars, pay less attention to wonkish government national security legal policy speeches than we at Lawfare. This should be a lesson for the Obama administration as well, which, with Ben and Susan, can rightly claim that it has previously stated the outlines of the White Paper in public, but which also clearly did not have the impact on the opinion-guiding community through its speeches that it wanted.
Two final questions: Why wasn’t the existence of the White Paper – which is not classified or (apparently) protected by privilege – disclosed in the ACLU FOIA litigation? And what effect, if any, will it have on the pending ACLU FOIA case before the D.C. Circuit?
PS: A friend writes in with a partial answer to my first question, from today’s NYT:
The Times, which is pursuing a Freedom of Information Act lawsuit to obtain the Awlaki memo, in December filed a separate request under that act for the unclassified white paper after it was discussed in a Congressional letter. On Jan. 23, the administration declined to disclose it, portraying it as a 'draft' and citing an exemption for documents that are part of the executive branch’s “deliberative process.”
But the disclosed White Paper was not marked as a draft and the deliberative process privilege did not prevent the Executive branch from showing it to the intelligence and perhaps other committees.
PPS: Here, apparently, is the actual DOJ response to the NYT request