Targeted Killing: Litigation

Readings: Sen. Ron Wyden (D-OR) Letter to John Brennan, CIA Director Nominee, on Targeted Killing of US Citizens Abroad

By Kenneth Anderson
Monday, January 14, 2013, 5:29 PM

John Brennan, nominated by President Obama to become the next CIA director, will apparently face some tough questioning from Senator Ron Wyden (D-OR) at his Senate confirmation hearings (reportedly set for Thursday, February 7, 2:30 pm).  Sen. Wyden has sent Brennan a letter (obtained by Wired's DangerRoom) on the refusal of the Administration to release or discuss the targeted killing of Anwar Al-Awlaki or the legal authority and boundaries of the president to lethally target a US citizen such as Al-Awlaki - at least, beyond the statement of general processes and standards offered by Attorney General Eric Holder in a speech at Northwestern University in March 2012.  Spencer Ackerman has background at DangerRoom:

The man in charge of America’s drone wars will face Senate questioning about perhaps their most controversial aspect: when the president can target American citizens for death.

Sen. Ron Wyden (D-Ore.) sent a letter on Monday to John Brennan, the White House’s counterterrorism adviser and nominee to be head of the CIA, asking for an outline of the legal and practical rules that underpin the U.S. government’s targeted killing of American citizens suspected of working with al-Qaida. The Obama administration has repeatedly resisted disclosing any such information about its so-called “disposition matrix” targeting terrorists, especially where it concerns possible American targets. Brennan reportedly oversees that matrix from his White House perch, and would be responsible for its execution as CIA director.

“How much evidence does the President need to determine that a particular American can be lawfully killed?” Wyden, a member of the Senate intelligence committee, asks in the letter, acquired by Danger Room. “Does the President have to provide individual Americans with the opportunity to surrender before killing them?”

Thus far, senators on the intelligence panel have been more concerned about Brennan’s possible role in national-security information leaks and the CIA’s post-9/11 torture program than in using Brennan’s nomination to peer into the decision-making surrounding Obama’s counterterrorism strikes. Wyden writes that it is “critically important” for Congress to understand “how the executive branch understands the limits and boundaries of this authority.”

I have minor concerns with bits of Ackerman's phrasing.  I'm not sure I'd agree that the Administration has "especially" resisted disclosing information on the so-called "disposition matrix" where it concerns possible American targets - as distinguished from anyone else.  The article later refers to Awlaki as AQAP's chief "propagandist" merely, as though that were the basis for targeting him, whereas I don't think there's much serious question that Awlaki had a much more directly operational role in AQAP and that this was key.  Ackerman also talks about the dispute as being whether and when the president can lethally target an American citizen without "due process of law" - but what's in dispute is not whether there's some process of law that's due, but instead what that means under particular circumstances and under the purview of which branches of government.  AG Holder's speech at Northwestern did not contest that an American citizen is owed due process, even if senior leadership in a terrorist organization seeking to attack the United States and its citizens  - and nearly succeeding. But Holder insisted that what constitutes due process has always depended upon circumstances and need not be "judicial process"; hence he vigorously rejected the charge that Awlaki had been killed without "due process of law."

The confidential Office of Legal Counsel legal memorandum that Ackerman references, reportedly authored by David Barron and Marty Lederman, by my understanding is not really how Ackerman characterizes it.  It's apparently not merely "more general rules embraced by the administration about when killing a U.S. citizen is permissible in the U.S. shadow wars," but instead detailed factual and operational information about Awlaki, AQAP, and intelligence methods and operations, applying law closely and narrowly to specific facts.  People knowledgeable with the writing of OLC opinions - I defer to those who have worked in that office, of course - have told me that in keeping with usual OLC practice, the Awlaki memo is not likely to be a general declaration of principles or rules or lawful processes, but rather a close integration of law, confidential policy, and concrete operational facts, seamlessly interwoven to provide as narrow a legal basis for pronouncing on a proposed action's legality as possible - quite different from providing general guidance in the abstract.  And also not something that can be shown or redacted merely for its pure legal analysis apart from detailed operational facts and intelligence.  Of course, it does not help the claim to keep the OLC opinion secret that it, or anyway parts of it, seem quite plainly to have been shown to the NYT's Charlie Savage, in a leak that might well be in the category of quasi-blessed from above.  Were I a Senator, particularly one on an intelligence oversight committee, I would certainly be wondering why the Times could see it and not me.

Those are minor quibbles, though, and the DangerRoom article is excellent in setting the stage for what I've tagged as a "Readings" - the text of Senator Wyden's letter to John Brennan.  It is linked here via a Scribd account, a scanned pdf from DangerRoom.  (Below the fold I go on to discuss issues of secrecy, accountability, and transparency more broadly.)

Sen. Wyden's letter raises two distinct issues.  One is the nature of due process regarding the targeting of US citizens in circumstances such as Awlaki's.  The other is the nature of accountability and transparency, particularly to Congress, for such actions.  The administration's views on due process were actually quite well set out as general principles by AG Holder in his speech, in my view, and are basically correct for this kind of case; I don't share Sen. Wyden's general dismissiveness of Holder's speech.  However, Sen. Wyden's general complaint about the form and nature of accountability to Congress has considerable merit.  Whether the OLC memo was in fact quasi-blessed as a leak or was simply some official acting without any wink-or-nod from above - the perception that this is simply one of a long run of quasi-sanctioned leaks by the upper tiers of the administration is irresistible.

Equally irresistible is the thought - one of Sen. Wyden's main concerns, at least by implication - that the Obama administration seems to want to conduct "foreign policy-by-leak," as I somewhere put it.  Or at least that's what it did during the first term.  In practice this means: refuse to discuss something officially, but then to leak the parts it wants to leak, while not revealing the rest. My personal impression, for what it's worth, is that the Administration seems a little bit unaware of how galling it seems to people like Sen. Wyden, not merely that the administration plays this game, but that it seems to consider itself especially clever to do so. They feel manipulated.  Whether that's fair or not - and I think there's a lot that's fair about it - that's the perception. As de facto policy, though, it can't go on forever; it's clever, maybe, but too clever by half.  Everyone has this same instinctive reaction, and eventually it will prevail - perhaps in the form of a federal judge ruling on a FOIA request - viz., if something can be leaked to Charlie Savage and thence to the front page of the NYT, then either Congress ought to be able to see it, or maybe it ought to be considered fair game under FOIA.

The fundamental problem is that accountability is trapped between a rock and a hard place; although more can and should be revealed confidentially to the select intelligence committees, the Administration is keenly aware that revealing very much in more public or official ways, particularly by the CIA, risks depriving it of protection from FOIA claims.  This leads, of course, to the situation of national security leadership - including Brennan - having to say entirely absurd things with a straight face.  The series of national security speeches by the Administration's national security general counsels, plus Brennan's own series of speeches, has helped - not only because in them the Administration has admitted to drone strikes, but for other important reasons as well (which Ben Wittes and I aim to explain in a forthcoming book on the speeches).

Yet from the standpoint of secrecy-accountability, it is still not enough.  In saying that, to be clear, I don't mean it as a stalking horse for what the ACLU would like to see revealed, and in particular this is not a covert call for judicial supervision - but instead a call for reform of Congressional intelligence oversight.  The Administration perhaps needs to understood better that this kind of absurdity is not merely an instance of "plausible deniability" transformed into "preposterous deniability - mildly amusing, spy-movie official denial dialogue, wink-wink-nod-nod, and it's all okay because everyone is in on the joke.  Instead it's something much more corrosive to the sense of legal legitimacy of these vital national security programs, as well as to the very idea that there are actual secrets that do need to be protected.  If it took this de-legitimation risk more seriously, it might thereby take more seriously the need to reform the secrecy-oversight-FOIA process, as a necessary element of maintaining long-run legitimacy and firming up "institutional settlement" for counterterrorism policies such as the drone programs.

If the fundamental problem of accountability is that increasing accountability and transparency risks, under current FOIA law, throwing open the barn door to judicial scrutiny on matters hitherto believed for good reasons to belong to the political branches alone - then the fundamental problem of secrecy and the classification system is that it is at once over-inclusive and under-inclusive.  It starts by classifying far too much - through bureaucratic tendencies and incentives that convert information into access - but then discovers that it can't actually operate that way and, in any case, secret information only becomes a form of power insofar as one controls access to it.  Since there must be some access in order to "powerize" it (sorry for the that ugly neologism; looking for the equivalent of "monetize"), however, things get leaked, whether by tacit consent of top level officials or by lower officials for their own agendas.

That risks under-inclusion, however - there are many national security secrets that vitally need to be protected, and won't be if converted into the currency of "access." As Jack Goldsmith once remarked, when everything is secret, nothing is secret.  Part of the reason is a general and growing disbelief - officially facilitated cynicism, as it were, among such "players" such as journalists and lower ranked officials as well as the public - that there are any genuine reasons for secrecy apart from enabling the power agendas of various officials.  Moreover, it contributes to a loss of legitimacy of the national security regime as a whole, the actions of which rely (though beneath the surface of apparent realist "necessity") upon a crucial public sensibility: the perceived and accepted legitimacy of the president taking actions on behalf of a democratic polity that are necessarily both secret and highly discretionary.  None of these anxieties is truly new, of course - as the whole cultural and literary history of the Cold War reveals.  (Jack pointed in a recent discussion to Allan Dulles' memoirs of the early Cold War, but my own instinct is to haul out the great mid-Cold War science fiction novel, James Blish's They Shall Have Stars, the opening chapter of which features a prescient exchange between a Senator and the head of the American Association for the Advancement of Science, lamenting the loss of (calling Tyler Cowen!) scientific and technical innovation because of the secrecy system of a Cold War gone on for over a century.)

My own view is that sensible oversight reform would include a special, formalized confidential disclosure and consultation process with the select committees if targeting of US citizens arises in the future.  Yet that would need to be coupled, ideally, with a legislative reform of FOIA to provide more, and clearly legally reliable, exemptions for the CIA and other agencies for these operations. I don't know how one would draft that statutory reform, but I am certain that it needs to be much higher up the list of reform priorities than it currently is.  We need an accountability and reporting process between the two political branches that takes account of a much wider range of secret, covert, quasi-covert, deniable, plausibly deniable, barely deniable, preposterously deniable, and merely unacknowledged actions than we currently have.  That said, the relevant Twitter hashtag would have to be ... #GoodLuckWithThat.  Reform of the conjoined secrecy-oversight-FOIA process is nowhere on the horizon and most likely never will be, as I have learned from Amy Zegart's book on the oversight process (Eyes on Spies; reviewed here at Lawfare).

In any case, we can safely assume that secrecy, accountability, transparency, oversight, due process for American citizens, legal standards for targeted killing - all the topics in Sen. Wyden's letter - will come up in the hearings. Although, as Spencer Ackerman says, most of the heat on Brennan thus far has concerned enhanced interrogation from the Bush years and information leaks from the Obama administration, Sen. Wyden seems determined to also put all these other matters squarely on the table.

(I recommend following Stanford political scientist Amy Zegart's work on accountability processes in intelligence; her Twitter feed is @AmyZegart and she has a blog online at Foreign Policy. Thanks to all the members of the Hoover Task Force on National Security and Law for discussion, and to Barton Gellman for an excellent presentation at Hoover on national security secrecy, leaks, and the press.)