an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
The white paper's international law analysis is imprecise and confusing (perhaps, in places, deliberately so). It oscillates between two justifications for targeted killings: the use of military force against members of enemy forces during armed conflict and the use of force in self-defense (here, the paper cites, but does not quote, article 51 of the U.N. Charter). The paper is problematic on both fronts. As to the former, it assumes there is a global non-international armed conflict (NIAC) against al Qaeda and associated forces--a point contested by many international law scholars (see Kevin Jon Heller's indispensable posts here and here--and, contrary to the white paper, one not actually endorsed (not yet anyway) by the Supreme Court. Not only did Hamdan recognize only a non-international armed conflict with al Qaeda in Afghanistan, but the Supreme Court has historically been very cautious in addressing the government's claim that changing conceptions of war require expanded presidential powers (an argument pressed not only in Hamdan, Hamdi, and other GWOT cases, but also in Youngstown, Quirin, and other cases from more conventional armed conflicts where the government invoked the idea of "total war"). The paper also fails to engage with IHL rules on targeting civilians in NIAC, particularly with the requirement of direct participation in hostilities (likely because the government views it as too restrictive). As to self-defense, the white paper does not address how its elastic concept of "imminence" expands upon existing international-law definitions and understandings of the term.
The white paper's constitutional analysis is also problematic. The paper glosses over the lurking substantive due process question. I agree with the paper's conclusion that U.S. citizenship does not immunize an individual from the use of military force. That is the upshot of Quirin and Hamdi (while the former dealt with military trial and the latter with military detention, both support the argument that deadly force may potentially be used against citizens in time of war). Those cases (not to mention Milligan)also suggest, however, that the U.S. government cannot constitutionally kill a U.S. citizen under a law-of-war rationale unless that use of force comports with the law of war. Further, but importantly, the cases suggest that a statute (here, the 2001 Authorization for Use of Military Force (AUMF)) should not be construed as authorizing the use of deadly force against a constitutionally protected target unless that use of force is firmly grounded in the law of war. Note here Quirin and Hamdi's reference to clearly established and universally accepted law-of-war principles in finding the president's use of the military constitutional.
The paper does acknowledge that procedural due process can limit the president's authority to use military force against a U.S. citizen, citing Hamdi and its invocation of the Matthews v. Eldridge balancing test. But, as Steve Vladeck has pointed out, the paper ignores the prong of the test focused on the risk of error and the value of additional safeguards in minimizing that risk. The paper further concludes that judicial process is unwarranted.
As a recent report, The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions, makes clear, the risk of error in drone attacks remains significant, despite technological improvements. But there is no judicial examination of the standards the government utilizes, even ex post. Nor is there any remedial structure in place--judicial or otherwise--for civilians harmed by drones in Pakistan, Somalia, and Yemen. Such a structure not only could provide some compensation to victims, but also could provide some check on the drone program and the process it employees in selecting targets and carrying out attacks.
But perhaps my biggest concern with the constitutional analysis is what the paper doesn't address. Because it concerns only the targeted killing of a U.S. citizen, it does not engage with the question of what, if any, constitutional protections are afforded non-citizens, who are the overwhelming target of drone strikes. What, if any, role does the Constitution play in limiting drone attacks against non-citizens? Presumably none. The U.S. has consistently resisted recognizing the Constitution's extraterritorial application to non-citizens. This means then that the white paper likely reflects the U.S. government's most robust interpretation of the constitutional limits of its targeted killing program. To the extent the Constitution serves as a constraint on drone strikes in a case like the one described in the white paper, that constraint would be absent from virtually every other scenario.
The complexity of the issues, the continuing concerns about the program's legality, and the absence of any judicial check, at minimum, demand greater transparency to allow for more informed public debate. This is particularly so given the nature of drone warfare, which is conducted largely in secret and which avoids the type of U.S. troop involvement that can cause the public to question the government's actions. (Greater transparency is thus critical to what Mary Dudziak describes here as the need for "a new form of war politics"). 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). Indeed, one might think that President Obama--who has otherwise been so pragmatic in approaching national security issues--would be eager to release the legal basis for targeted killing since failing to do so suggests there is something to hide.
"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.