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Compendium of posts on Hobby Lobby and related cases
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
The Controversy over DOJ's Targeted Killing White Paper
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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Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023)
Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022)
Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022)
Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022)
Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021).
Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021).
Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020)
Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020)
Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020)
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020)
Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020)
Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020)
Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019)
Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018)
Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018)
Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018)
Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017)
Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017)
Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016)
Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015)
Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015)
Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015)
Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014)
Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution
Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014)
Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013)
John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013)
Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013)
Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013)
Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013)
James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013)
Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues
Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013)
Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012)
Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012)
Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012)
Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012)
Jack M. Balkin, Living Originalism (Harvard University Press, 2011)
Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011)
Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011)
Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011)
Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011)
Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)
Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010)
Balkinization Symposium on The Decline and Fall of the American Republic
Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)
Mark Tushnet, Why the Constitution Matters (Yale University Press 2010)
Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010)
Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009)
Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009)
Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009)
Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009)
Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009)
Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008)
David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007)
Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007)
Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007)
Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006)
Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006)
Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006)
Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006)
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006)
Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005)
Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004)
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