Targeted Killing

My Reponse to "Norwegian Shooter"

By Benjamin Wittes
Saturday, October 29, 2011, 10:14 AM

Mark Erickson, who blogs under the most-unfortunate handle Norwegian Shooter, recently published some correspondence with me concerning his claim that the reported OLC memo reflects Lord Acton-style corruption on the part of its authors. Erickson--who, to be fair, he has been calling himself "Norwegian Shooter" since long before events in Oslo made the name horrifying--is a prolific emailer of responses to Lawfare posts, and he posts comments frequently to our Facebook page as well. (Indeed, I think he has posted more to the Facebook page than the sum of all other Lawfare readers combined.) Just to be clear, I have no problem with his making the correspondence public--indeed, he made clear that he meant to and I gave him permission explicitly--but as he published only part of my response to his question, I thought I would release the rest so that interested readers can have a full sense of my answer to the question he posed me.

The correspondence began when Erickson sent me a post by He Who Must Not Be Named on This Blog concerning the reported OLC Al-Aulaqi memo and asked me, speaking about Marty Lederman, "So do you believe power corrupts now?" I responded, "I think the world of Marty Lederman and David Barron, and I do not believe for a second that their judgment was corrupted by power."

Mark wrote the exchange up with the following comments and questions directed at me:

Seems pretty obvious, doesn't it? As Lord Acton has stated, power tends to corrupt. There are innumerable examples of this cliche--which is a cliche because it's true. So what does Ben Wittes, who personally knows both Barron and Lederman, say?

I think the world of Marty Lederman and David Barron, and I do not believe for a second that their judgment was corrupted by power.

From a personal email to me. Okay, I can't argue with a belief Wittes holds, that's his prerogative. However, I have a couple of questions for him:

  1. Can you imagine an opinion issued by Lederman that would lead you to conclude his judgment was corrupted?
  2. What makes Lederman different from all the other people whose judgment was corrupted by power?

I responded as follows:

Dear Mark--

The answer to both of these questions is essentially the same: I have very high regard for both men, so I would be sorely disappointed if either had produced work product that struck me as irreconcilably at odds with what I understood the law to be. Yet this memo, insofar as I understand it from Charlie Savage's reporting, is quite in keeping with what I believe the law to be. In fact, if you look at my posts on the question at hand from before the Savage story, they track the broad contours of the reported arguments in the memo reasonably closely. So from my point of view, this looks like two serious lawyers examining a hard and relatively uncharted legal question and coming up with an answer similar to the one I came up with myself. Since I don't regard my own analysis as corrupt (though I'm sure others do), I see no reason to disparage theirs.

But ah, I hear you cry, you are some kind of wing-nut posing as a centrist, while they purport to be liberals. So isn't it intellectual corruption that they find themselves in agreement with you when their president needs the sort of analysis I expect from the likes of you but expect more of from the likes of them? Hardly. Marty and David never opined, to my knowledge, on the question of targeted killing of a citizen during the Bush years. And while there is surely some relationship between targeting and detention, no serious lawyer asked to examine the Al Aulaqi question would consider it answered entirely by his own prior statements in blog posts, of all things, about the Padilla or Al Marri cases. To do so, I dare say, would be malpractice.

Marty is one of the two godfathers of modern legal blogging (along with Eugene Volokh). His blogging work set a standard of real-time commentary that hybridized the best of journalism with the best of academia. All of us who try to bring serious legal commentary to bear on the news follow in his footsteps to some degree. So it is with very deep respect for his blogging work that I insist that he had an ethical obligation to put it all aside when he showed up for work at OLC. There are many values an OLC lawyer is called upon to honor. Fidelity to his own past incidental writings--particularly his writings on other subjects--is not one of them. Finding something in Marty's past that cuts in a different direction from the analysis in the memo on a related, but not identical, issue strikes me as a bit of a mug's game.

What would convince me that the work was corrupt? An opinion evincing not merely legal error but legal error I thought they could not honestly believe. In this case, I don't reach the second question, because I think they got something admirably close to the right answer.

As to your second question, I would turn it around: Isn't it possible that, in this case, the law allowed the President and the CIA to do as they wished in the narrow circumstances that they wished to do it? And isn't it possible thus that the situation was less corrupting than you assume? Indeed, isn't it possible that Marty and David adopted about the most restrictive view of the law that the case law would actually support? This is actually what I think happened.

With all best wishes,