CIA General Counsel: The Osama bin Laden Killing Was Legal Because … “Triumph!”
In this post, I unpacked how the CIA General Counsel, Stephen Preston, managed to argue that “the CIA is an institution of laws and the rule of law is integral to Agency operations” even while admitting that courts had no review over many of its activities.
In the rest of his speech, Preston examines a “hypothetical case” that I will eventually argue is the Anwar al-Awlaki killing, and then a concrete example, the Osama bin Laden killing.
While the OBL case doesn’t elucidate much–anything–really about CIA’s legal process, I want to examine what Preston said because it’s so lame.
The OBL section takes up 794 words out of the 3,488 words total in the speech–over a fifth of the speech. Preston starts by claiming (in just over 50 words) he wants to examine the OBL example because it shows “that the rule of law reaches the most sensitive activities in which the Agency is engaged.”
In the next paragraph (68 words) Preston says he won’t dwell on the importance of the OBL op in terms of the larger fight against al Qaeda, because that’s already been covered; instead, he’ll focus on the law. Except,
But if you will indulge me, there are a few other aspects of this historic event that warrant mention up front.
Preston then spends three paragraphs describing what a “triumph” of intelligence (195 words), an example of momentous Presidential decision-making (70 words), and a “triumph” for our military (164 words) the op was. Preston spends well over half the section of the speech purporting to show that the rule of law reached the most sensitive CIA ops talking, instead, about what a triumph nailing OBL is.
That’s the kind of analysis he’s conducting to make sure all this is legal, I guess? Will it be a “triumph”? If so, then it must be legal.
Once Preston has declared “triumph,” here’s the not very interesting 165 words he finally offers about the legal analysis of the OBL raid:
Because of the paramount importance of keeping the possibility that bin Laden had been located a secret and then of maintaining operational security as the Abbottabad raid was being planned, there were initially very few people in under the tent. So I cannot say the operation was heavily lawyered, but I can tell you it was thoroughly lawyered. From a legal perspective, this was like other counterterrorism operations in some respects. In other respects, of course, it was extraordinary. What counsel concentrated on were the law-related issues that the decision-makers would have to decide, legal issues of which the decision-makers needed to be aware, and lesser issues that needed to be resolved. By the time the force was launched, the U.S. Government had determined with confidence that there was clear and ample authority for the use of force, including lethal force, under U.S. and international law and that the operation would be conducted in complete accordance with applicable U.S. and international legal restrictions and principles.
So:
- Not heavily lawyered but thoroughly lawyered
- Like other counterterrorism operations but not
- Analysis was divided into the law-related issues the decision-makers would have to decide, the legal issues of which decision-makers would have to be aware, and the lesser issues
- The US Government decided it was a legal use of lethal force
Note what Preston didn’t discuss: who in the USG decided this was legal, especially if the analysis pertained primarily into what information decision-makers would have to decide and what they’d simply need to be aware of. Nor does he discuss how the legal analysis decided that killing, not capturing, OBL was legal.
I’d also be interested in whether anyone analyzed the legal implications of using an immunization drive as cover for the intelligence gathering part of the operation, since that, too, might lead to casualties, if only indirectly, but then I’m a dirty fucking hippie who cares about the kids who will forgo immunization now because their parents fear that it’s a CIA op.
Not only does Preston offer almost no insight into the legal analysis that went into OBL’s killing, but consider how inadequate his example is to “show that the rule of law reaches the most sensitive activities in which the Agency is engaged.” OBL’s killing was a covert op, which Preston has already helpfully explained means, “it is intended that the role of the U.S. Government will not be apparent or acknowledged publicly.” Yet here he is, acknowledging publicly what a “triumph” the op was for US intelligence and the US military. So it’s rather hard to believe that the OBL killing is a good example of “the most sensitive activities in which the Agency is engaged.” Hell! It’s a public “triumph”! We might even be able to have courts review it!
The OBL op, then, serves as a thoroughly unenlightening surrogate for the “hypothetical” op this speech is really about–Awlaki’s killing, which really is among “the most sensitive activities in which the Agency is engaged.” And, along the way, a convenient way to spend a big chunk of the speech talking about “triumph” rather than rule of law.
Now, I’m really not trying to litigate whether the OBL killing was legal or not, though I do think the kill versus capture issue probably is a legitimate question. And I don’t want to diminish the work of the spooks and SEALs who carried out this operation; both deserve kudos.
But if the CIA’s idea of proving they abide by rule of law entails,
- Reaffirming the definition of covert ops as those in which US government’s role will not be acknowledged publicly
- Asserting the necessity of keeping covert ops secret from courts
- Boasting, in explicit detail, about the “triumph” of what it claims is an example of one of its “most sensitive” covert ops
Then they’re not really making a coherent argument. Rather, they’re showing that secrecy is not a matter of necessity–indeed, it can be disposed of in case of “triumph,”–but rather just an expedient way of avoiding legal oversight of the truly sensitive ops CIA conducts.
But who needs rule of law when you have “triumph”!?
Rut roh. Donna Rohrbacher, I mean Dana Rohrabacher is not going to be happy that you’re dissing his hero, Dr. Afridi. Once he starts tweeting at you, he can’t stop.
It’s legal because Obama is such a Constitutional law scholar, that Due Process no longers needs courts /s
“And I don’t want to diminish the work of the spooks and SEALs who carried out this operation; both deserve kudos.”
Normally I’m hesistant to criticize rank and file soldiers, but killing (assassinating) OBL when he was by their own admission unarmed doesn’t merit praise…I blame everyone from the killer up to the WH for that. Obama certainly seems to prefer killing people rather than taking them to court.
Speaking of Triumph, his reasoning is really something… for me to poop on!
i don’t want to get all nerdy and what not but if you read ‘legacy of ashes’ by the new york times national security reporter tim weiner he spends an awful lot of time on the complete lack of legal underpinnings to the CIA going all the way back to its founding.
if i remember correctly, he basically says it’s an agreed upon (by the president and congress) collection of people that do illegal and highly dubious thinngs in our name.
very depressing book but i learned a ton.
The fact that the Seals carried it out and not the CIA is a huge difference in international law. So it wasn’t an example of how the CIA can act legally under international law at all, and Preston knows that it isn’t because such examples are classified or secret. It’s because spies who kill people are murderers, not soldiers.
Notwithstanding EW’s on-the-mark take-downs, I found CIA General Counsel Preston’s speechifying rather amazing in the first place.
I can’t figure out his motivation other than as a lame attempt to achieve some stature in the Administration legal pecking order, and based upon the actual contents of his self-serving speech, I would suggest his attempt has backfired.
I wonder if peacockery is a requisite job requirement. Rizzo seemed to suffer from the same affliction.
History is written by the victors. — Churchill.
Constitutional law is written by the victors. — Obama.
@MadDog: As I’ve said, it seems like another attempt to “come clean” on Awlaki’s killing.
Which it’s not.
@emptywheel: Which, at least to me, raises the question as to “why?”.
Who is poking the Administration with regard to the Awlaki killing that keeps folks like Holder and Preston dribbling out their rationale even if they are trying to sell a story without actually telling the story?
Spies who kill people are murderers, not soldiers… whereas soldiers who kill prisoners (hey, we all saw OBL’s pre-execution mug shot) are war criminals who violated the Lieber Code and Hague Convention (IV) Article 23. And it doesn’t matter what your lapdog lawyers say, the facts determine guilt, not your bullshit legal fantasies. So if Preston had balls, like a real man, like Liddy or Ollie North, he would get his day in court and make his big triumphant case, or else take his medicine like a man – but he’s ascared, he’s a sissy wuss coward war criminal, “Ooh, please please don’t put me in jail, protect me, boo-hoo-hoo-hoo.” Preston, you cowardly shitstain. Come and try and punch me out, you sleeve, use your NSA illegal surveillance to locate me, and come see if you can do it. You don’t have the training. And you’re a war-criminal’s shyster coward.
@MadDog: Agreed; for what audience is the it’s-all-perfectly-legal! speechifying intended? And why do these clowns keep getting invited to spin this drivel in the first place? Is it a morale booster for the other people in the Agency? To lay a record (though of what is unclear)? Messaging to politicians and the public, as if both hadn’t long ago signaled that they’re ok with all of this?
(Aren’t there laws against public onanism?)
@GKJames: I can’t imagine the Obama Administration’s ongoing Awlaki song and dance musical is due to us heathens in the blogosphere.
I suspect that they are responding with this gibberish due to some Senate Democrats like SCSI Chair Diane Feinstein, and perhaps Judiciary Chair Pat Leahy.
Truer words than one will find most places.
Btw, the US has used immunization drives abroad for other covert ops. (The movie Apocalypse Now alludes to it, though it twists the truth some.) I’ve mentioned it here before, but who ever remembers what was said in a comment? (Present company and the late Mary excepted.)
I suppose I’ll have to write it up as a posting, for posterity sake if nothing else.
@Black belt in briefs: To which photograph are you referring? Demonstration?
Huh. Damned if I can find it on the web now. Wonder if they scrubbed it off the wayback machine and the minor search engines’ cache. Maybe I’ll put my grab back up, just to torque the world. I guess that picture would raise some awkward questions, Huh? …like about whether OBL had been rendered hors de combat by detention before his wilful extrajudicial killing by our death squads I mean Special Forces, and whether Commander-in-Chief Obama is immunized from war crimes by virtue of his position in a civilian-military command structure, considering the relevant precedent of the International Tribunal of the Former Yugoslavia and stuff.
The funny part is, times change, you know, and when Uncle Sam comes to Jesus, and they hood Obama and give him an enema and ship him to the Hague on a stretcher, as America’s one and only war criminal in human history, Joe Lieberman will be right there to pop in the butt plug.
Huh-huh-huh, blast from the past, remember, they stopped wavin the big foam finger pretty quick when random guys from the world reminded them about THE FUCKING LAW
http://www.guardian.co.uk/world/2011/may/04/osama-bin-laden-photos-raid
OT: BBC gets it wrong, wonder whether it will help cause a war?
According to the BBC, Sudan and South Sudan are about ready to go to war over the Heglig oil fields. BBC’s report says, “Oil-rich Heglig is usually recognised as being part of the north, although South Sudan disputes this.”
Oh.
Here is a World Food Programme Detailed Transport Map of South Sudan Unity Province from 9/15/2011. Such maps have been drawn with great care by WFP, by ReliefWeb, and by OCHA because of the split in July, and because of relief efforts needed almost immediately in the border regions. If you look to the east of Abeyei region, in the green Unity Province, Pariang County, south of Wunkur and west of Pariang, you will see the town of Heglig, in the territory of South Sudan. Maybe the BBC used the British 1956 line not the current boundary to check.
If BBC’s bad reporting causes a war, does it matter to anyone at BBC?
@black belt in briefs: In other words, you don’t have a photo. That’s kinda what I thought. An accusation built on a belief of an act that you believe happened that you have no proof of any kind for, but seems right to you. If you were a defendant in an American court for any major crime, say murder, a grave breach of the Geneva Conventions under the War Crimes Act, for instance, would you want to be convicted on that? Yes or no, random guy.
I didn’t argue in favor of the government. But the bin Laden mission, in absence of any evidence to the contrary of the account presented, was legal with respect to international humanitarian law (up to the mission itself, not necessarily the presence of U.S. troops on Pakistani soil, which is a different matter of debate). Evidence to the contrary would be evidence that bin Laden surrendered or attempted to. You said you had such evidence, and then failed to produce it. You can’t jeer or insult your way out of that, or produce an article in which people suppose that it’s logical that there might be such evidence. That isn’t how it works.
What I said about the CIA is still true. If the account as stated about the bin Laden mission were re-stated with the CIA carrying out the mission, it would become illegal under international law.
There are two types of people who are blind on these kinds of things. People who think the government is always right, and people who think the government is always wrong.
What the legal academy should be concerned about is that the institution at its pinnacle invited Mr. Preston to expound on his agency’s compliance with the rule of law in the first place. If his speech were given under oath, it would be an example of Mr. Obama’s alma mater suborning perjury.
@earlofhuntingdon:
i was wondering myself: “why invite the cia’s lawyer to speak when it is a foregone coclusion he will mislead, obfuscate, and lie?”
but then it occurred to me that this may have been viewed as a training exercise for students. ;)
but of course, why did i not suspicion it? –
stephen preston, harvard law school, 1983.
http://www.law.harvard.edu/news/2009/04/24_preston.html