Media Criticism

The Washington Post on Holder's Speech

By Benjamin Wittes
Tuesday, March 6, 2012, 10:39 AM

My former colleagues on the Washington Post editorial page have weighed in quickly on Eric Holder's speech yesterday with an editorial entitled, "It's Time to Release the Drone Memos." The gravamen of the editorial, as the title suggests, is that the administration "should release the Justice Department memorandum that lays out the domestic and international strictures which, it says, undergird its drone policy." The editorial does not take issue with Holder's speech. Indeed, it says generally that,

We agree with the thrust of Mr. Holder’s statements. But these are assertions based on the administration’s interpretation of the law, not an explication of which laws it relies on in justifying these strikes.

The country learned all too well during the Bush administration’s indefensible use of torture how existing legal authorities can be twisted. Soon after President Obama took office, Mr. Holder made public many of the Bush-era “torture” memos crafted by the Justice Department’s Office of Legal Counsel; he should now perform a similar public service by releasing — in redacted form, if necessary — the department memos that deal with drone strikes.

I certainly support releasing as much of the underlying documentation as possible, and I have no end of admiration for the Post editorial page. That said, this argument seems to me a little bit off. For one thing, I think the administration deserves considerable credit for--beginning with Harold Koh's ASIL speech, continuing through Jeh Johnson's and John Brennan's speeches, and culminating in this one by Holder--laying out a great deal of its general legal theory. It has gone from near total silence on the subject as drone strikes ramped up to a fairly comprehensive account of the legal basis for what we are doing.

What's more, while the key paragraphs of Holder's speech deal with due process concerns, not with the general power to wage the conflict, the administration has hardly been cagey on that subject. It regards the conflict--correctly in my view--as authorized by Congress in the AUMF and as lawful under international law, and it regards the president has having inherent power to defend the nation. All of this Holder reiterated yesterday:

[W]e must also recognize that there are instances where our government has the clear authority – and, I would argue, the responsibility – to defend the United States through the appropriate and lawful use of lethal force.

This principle has long been established under both U.S. and international law.  In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups.  Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law.  The Constitution empowers the President to protect the nation from any imminent threat of violent attack.  And international law recognizes the inherent right of national self-defense.

So there's no real secret about the administration's general legal theory about, as the Post puts it, "the domestic and international strictures which, it says, undergird its drone policy." Rather, the question the Al-Aulaqi case raised is what additional constraints the Constitution may impose when those general legal theories happen to involve the targeting of a U.S. citizen.

As an official statement on that subject, Holder's speech yesterday broke a lot of new ground--though it largely put on the record what Charlie Savage had earlier reported about the OLC memo authorizing the Al-Aulaqi strike. So while I don't disagree with the Post that more detail on the legal theory would be nice, I think this step is worth appreciating on its own terms at least for a day or two. To put the matter simply, it's a big step, a salutary one, and one for which the administration deserves a lot of credit.