Wednesday, February 06, 2013
The Controversy over DOJ's Targeted Killing White Paper
The media and blogosphere are abuzz over the release (via a leak) of DoJ's "white paper" outlining legal arguments used to support the targeted killing of a U.S. citizen in Yemen described as a "senior operational leader of al Qaeda or of an associated force." It is not difficult to see why. The white paper highlights the collision of a new technology that enables killing by remote control (drone warfare) and a novel concept of war itself, one waged increasingly away from "hot battlefields"--that is, the war formerly known as the Global War on Terror (GWOT). Both are highly controversial, and the subject of much uncertainty. Yet, rather than resolve questions, the white paper begs more.
"There is no legitimate basis for the Obama administration's refusal to release the white paper, which was never classified in the first place. (It should also release the legal reasoning in the underlying Office of Legal Counsel memo on which the paper is based)."
The best reason not to release the white paper is likely the recognition of its extreme weakness as a justification. If the underlying Office of Legal Counsel memo is no better, then that would be a compelling reason not to release the full memo either.
Bush et al had their torture memos written to provide after-the-fact justification, in case they needed it someday, but they realized their case was stronger if they never actually had to make it, and they kept quiet. (Perhaps adopting the time-tested strategy that it's better to keep quiet and be thought a fool, rather than speak and remove all doubt.) The same rationale may have been at work for Obama and company. Now that the memo has been leaked, perhaps they'll need to come up with a much better case – or perhaps there will be a bipartisan chorus of "kill, baby, kill" and the controversy will blow over.
The white paper is a sort of summary of other arguments, including a longer memoranda secretly provided to apply to the Al-Awalki matter.
A summary of the argument has also be made in speeches by Holder, Koh and Jeh Johnson. Certain specifics are getting play but the general argument to me is fairly un-novel.
The cited memo, as Jack Goldsmith noted some time ago, should be released. Don't really see why it shouldn't. It shouldn't be some sort of national security secret. The specific triggers, the evidence, might be secret, but the basic argument should not be.
Some senators already are asking for such things and the CIA head nomination will be a means to ask for information as well.
The posts on the DOJ's "white paper" at this Blog, as well as some of the comments, are most welcome, especially the calls for transparency. The world is not governed by Marquess de Queensberry rules. But America is ruled by its Constitution. Unfortunately the Constitution does not provide precise details on executive power - or Congressional power - in relation to war and foreign policy in the complex world of today, that like technology gets more complex more quickly.
So, if there were called a constitutional convention, how might it address the current brouhaha over the DOJ's "white paper"? Would there be greater foresight in addressing the present and in particular the future as circumstances may change as compared to the Framers/Ratifiers back when? Might the focus at such a convention be more political than substantive? The world was much smaller in the time of the Framers/Ratifiers. While foresight can be difficult, hindsight on war and foreign policy is not 20-20.
But there have to be some cautions regarding transparency since potential threats to America's national interests would have access in this day and age of communications. This brings to mind the rock and the hard place.
The Obama administration apparently summarized its legal reasoning into this "white paper" and intentionally leaked it in hopes of deflecting Congress' requests for the actual classified legal memos before the Senate hearing on the CIA director nomination.
They also sanitized the "white paper" by removing dates and signature blocks, almost certainly to save the Justice authors of the actual memoranda from the harassment directed at Yoo and Bybee after the release of their memos.
Didn't our yodeler defend Yoo and Bybee when they were harassed about their torture(d) logic? And hasn't Yoo basically agreed with the "white paper"? Of course Bybee most likely will not be heard from on this as he was "rewarded" with a judgeship by the Bush/Cheney Administration for his loyalty.
Alas, our yodeler continues to play his "little Sir Echo" role, having "sanitized" the eight (8) years of Bush/Cheney in his own mind so as to heap all of America's ills onto Pres. Obama.
The WaPo had a great piece last Sunday on Bush/Cheney and their minions on the WMDs, etc, "slam dunk," with pictures like a Rogues' Gallery.
Yes, I defended the ability of Yoo and Bybee to express legal opinions in response to legitimate questions posed by the President without being personally destroyed, sued and threatened with criminal prosecution by our allegedly tolerant legal community.
This is why I find Justice scrubbing its "white paper" to protect its attorneys be very understandable indeed.
Does our yodeler know of the scrubbing by Bush/Cheney and their minions of the bases of their WMDs, etc, slam dunk? Apparently Bush/Cheney had trouble with the "Curveball." But Cheney had a Halliburton of a time. Now our yodeler seems to be threatening Pres. Obama with criminal prosecution. But our yodeler was not protecting "free speech" of Yoo and Bybee, rather the torture they opined on.
Here's a quote Patrick O'Donnell provided in a comment at Concurring Opinions from Garry Wills' 2010 book "Bomb Power: The Modern Presidency and the National Security State":
“[T]he momentum of accumulating powers in the executive is not easily reversed, checked, or even slowed. It was not created by the Bush administration [although Yoo and others shamelessly endeavored to give it an historico-legal imprimatur]. The whole history of America since World War II caused an inertial rolling of power toward the executive branch. The monopoly on use of nuclear weapons, the cult of the Commander in Chief, the worldwide web of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the whole National Security State, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that melded World War II and the Cold War with the war on terror—all these make a vast and intricate structure that may not yield to efforts at dismantling it. [….] A president is greatly pressured to keep all the empire’s secrets. He feels he must avoid embarrassing the hordes of agents, military personnel, and diplomatic instruments whose loyalty he must command. Keeping up morale in this vast shady enterprise is something impressed on him by all manner of commitments. He becomes the prisoner of his own power. As President Truman could not NOT use the Bomb, a modern President cannot NOT use his huge power base. It has all been given him as the legacy of Bomb Power, the thing that makes him not only Commander in Chief but Leader of the Free World. He is a self-entangling giant.”
No President seems prepared to give up executive powers passed on from President to President. As I asked in an earlier comment, how might a constitutional convention address executive power?
The CiC has not gained any constitutional powers since WWII. Rather, Congress maintained our first large standing military and intelligence services after WWII.
Prior to WWII, the peacetime US Army was about on par with Belgium and we possessed no intelligence services worthy of the name. The President could not go to war without Congress declaring war or at least funding a massive military mobilization.
After WWII, the president had the forces on hand to go to war without a declaration or a substantial mobilization by Congress. De facto power to go to war shifted from Congress to the President.
The Obama administration apparently summarized its legal reasoning into this "white paper" and intentionally leaked it in hopes of deflecting Congress' requests for the actual classified legal memos before the Senate hearing on the CIA director nomination.Buy Fifa 14 Ultimate Team CoinsPost a Comment
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