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Obama Administration Changed the Rationale for Why Assassinations Don’t Violate the Assassination Prohibition

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As a number of outlets have reported, the Second Circuit last month upheld the government’s effort to keep a March 29, 2002 OLC memo pertaining to targeted killing secret; the opinion was unsealed yesterday. The government is probably doing so to keep changes in their rationale for why assassinations don’t violate the prohibition on assassination in EO 12333 secret.

The judges on the panel — especially Judge Jon Normand, who wrote the opinion — had pushed during an ex parte hearing in June to release language in that earlier memo because the dog & pony show around drone strikes in 2012 to 2013 had used closely related language. But after some more secret briefing, the court decided the application of EO 12333 was different enough such that it remained properly protected.

It seems highly likely the specific part of EO 12333 under discussion pertains to the assassination ban. Between the earlier hearing and the opinion, the court pointed to language in the March 25, 2010 Harold Koh speech, the March 5, 2012 Eric Holder speech, and the April 30, 2012 John Brennan speech on targeted killing (they also pointed to two Panetta comments). Each of the cited speeches discusses the assassination ban — and little else that might directly pertain to EO 12333, besides just generally covert operations authorized under Article II. There’s this language in Koh’s speech.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

This language in Holder’s speech,

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

And this language in Brennan’s speech.

In this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets.  We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.

But even though all these public speeches commented on this interpretation of the assassination ban, the 2nd Circuit still permitted the government to shield the earlier memo.

The transcript of the June ex parte hearing reveals one explanation for that: the earlier memo was a “far broader interpretation” of the issue.

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That’s consistent with the government’s earlier claim (which I wrote about here).

Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.

In other words, while the earlier memo discusses the same aspect of EO 12333 as these public speeches (again, the assassination ban is by far the most likely thing), the earlier memo uses significantly different analysis, and so it may be hidden.

The June transcript also reveals that OLC lawyers reviewed and wrote on the 2002 memo at a later time — the implication being that someone in OLC reviewed the earlier memo in 2010 when writing the Awlaki one (and curiously, that hard copy with handwritten notes is the only one DOJ claims it can find).

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There are two things I find increasingly interesting about this earlier memo about EO 12333 — including at least one part presumably about the assassination ban. First, the implication that one of the lawyers reviewing it in 2010 saw the need to write a new memo (perhaps seeing the need to clean up yet more crazy John Yoo language? who knows). As I repeat endlessly, we know there’s a memo of uncertain date in which Yoo said the President could pixie dust the plain language of EO 12333 without changing the public language of it, and it’s possible this is what that memo did (though the President was clearly pixie dusting surveillance rules).

But I’m also interested in the date: March 29, 2002. The day after we captured Abu Zubaydah (who, at the time, top officials at least claimed to believe was a top leader of al Qaeda). The SSCI Torture Report made it clear the CIA originally intended to disappear detainees. Were they planning to execute them? If so, what stopped things?

In any case, CIA won its battle to hide this earlier discussion so we may never know. But it appears that DOJ may have felt the need to think thing through more seriously before drone assassinating a US citizen. So there is that.

 

Government’s Assassination of Anwar al-Awlaki Used “Significantly Different” EO 12333 Analysis

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Jameel Jaffer has a post on the government’s latest crazy-talk in the ongoing ACLU and NYT effort to liberate more drone memos. He describes how — in the government’s response to their appeal of the latest decisions on the Anwar al-Awlaki FOIA — the government claims the Court’s release of an OLC memo does not constitute official release of that memo. (Note, I wouldn’t be surprised if the government is making this claim in anticipation of orders to release torture pictures in ACLU’s torture FOIA suit that’s about to head to the 2nd Circuit.)

But there’s another interesting aspect of that brief. It provides heavily redacted discussion of the things Judge Colleen McMahon permitted the government to withhold. But it makes it clear that one of those things is a March 2002 OLC memo that offers different analysis about the assassination ban than the analysis used to kill Anwar al-Awlaki.

The district court also upheld the withholding of a March 2002 OLC Memorandum analyzing the assassination ban in Executive Order 12,333 (the “March 2002 Memorandum”). (CA 468-70; see CA 315-29). Although the district court noted that the OLC-DOD Memorandum released by this Court contained a “brief mention” of Executive Order 12,333, the district court concluded that the analysis in the March 2002 Memorandum is significantly different from any legal analysis that this Court held has been officially disclosed and for which privilege has been waived.

The statement here is carefully worded, probably for good reason. That’s because the February 19, 2010 memo McMahon permitted the government to almost entirely redact clearly explains EO 123333 and its purported ban on assassinations in more depth than the July 16, 2010 one; the first paragraph ends,

Under the conditions and factual predicates as represented by the CIA and in the materials provided to us from the Intelligence Community, we believed that a decisionmaker, on the basis of such information, could reasonably conclude that the use of lethal force against Aulaqi would not violate the assassination ban in Executive Order 12333 or any application constitutional limitations due to Aulaqi’s United States citizenship.

I pointed out that there must be more assassination analysis here. It almost certainly resembles what Harold Koh said about a month later, for which activists at NYU are now calling into question his suitability as an international law professor.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

But the government is claiming that because that didn’t get disclosed in the July 2010 memo, it doesn’t have to be disclosed in the February 2010 memo, and the earlier “significantly different” analysis from OLC doesn’t have to be disclosed either.

At a minimum, ACLU and NYT ought to be able to point to the language in the white paper that addresses assassinations that doesn’t appear in the later memo to show that the government has already disclosed it.

But I’m just as interested that OLC had to change its previous stance on assassinations to be able to kill Awlaki.

Of course, the earlier memo was written during a period when John Yoo and others were pixie dusting EO 12333, basically saying the President didn’t have to abide by EO 12333, but could instead violate it and call that modifying it. Perhaps that’s the difference — that David Barron invented a way to say that killing a high ranking leader (whether or not he’s a citizen) didn’t constitute assassination because of the weapons systems involved, as distinct from saying the President could blow off his own EOs in secret and not tell anyone.

I suggested Dick Cheney had likely pixie dusted EO 12333’s ban on assassinations back in 2009.

But there’s also the possibility the government had to reverse the earlier decision in some other fashion. After all, when Kamal Derwish was killed in a drone strike in Yemen on November 9, 2002, the government claimed Abu Ali al-Harithi was the target, a claim the government made about its December 24, 2009 attempt to kill Anwar al-Awlaki, but one they dropped in all subsequent attempts, coincident with the February 2010 memo. That is, while I think it less likely than the alternative, it is possible that the 2010 analysis is “significantly different” because they had to interpret the assassination ban even more permissively. While I do think it less likely, it might explain why Senators Wyden, Udall, and Heinrich keep pushing for more disclosure on this issue.

One thing is clear, however. The fact that the government can conduct “significantly different” analysis of what EO 12333 means, in secret, anytime it wants to wiretap or kill a US citizen makes clear that it is not a meaningful limit on Executive power.

Jack Goldsmith Declares Victory … for Osama bin Laden

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Yesterday, Jack Goldsmith misread a crabby Harold Koh defense of Obama’s ISIL escalation justification as the end to the end to the Forever War.

Harold’s Koh’s grudging defense of the domestic legal basis for President’s Obama’s use of force against the Islamic State in Iraq and Syria is important.  It adds little new to other defenses of the President’s position – a legal position, I have argued in past posts, is politically stupid and constitutionally imprudent but nonetheless legally defensible under Article II and the 2002 AUMF (but not the 2001 AUMF).  Koh’s defense is nonetheless important because it definitively reveals the death of the Obama administration’s ambition to end what Koh has described as “the Forever War.”

As I said, I think this is a misreading of Koh. Koh still clings to the notion that a Congress ducking legislative action for many reasons — almost none of which have to do with electoral pressure in the short term, and many of which have to do with the fact the President has given them the luxury of dodging responsibility for what will almost certainly be an unpopular and probably unsuccessful escalation — will provide the President a more appropriate authorization for his escalation later this year.

Achieving a better outcome is not politically impossible. Representative Adam Schiff’s proposed AUMF, for example, would accomplish in one bill three of the four steps described above. It would (1) authorize “all necessary and appropriate force against ISIL” for eighteen months, limited geographically to Iraq and Syria and operationally to no US ground forces; (2) repeal the 2002 Iraq AUMF now and (3) repeal the 2001 al-Qaeda AUMF in eighteen months. If the President openly backed such legislation, it would place his war with ISIL on a much firmer legal ground, while advancing his longer-term objective—announced in 2013 at the National Defense University —of taking us off a permanent war footing.

This President came to office to end war. But he just declared a new one, sparing Congress of its constitutional responsibility to back him. Instead of breaking the vicious cycle, and asking Congress to live up to its constitutional duties to confront the Islamic State, the President prolonged a dysfunctional historical pattern that is inconsistent with the design of our National Security Constitution. As the conflict with ISIL stretches on, pressure will build to send advisers and other boots on the ground to further the goal of destroying ISIL. Americans and the world will grow weary and forget the exigencies that led this President to take this course.

There is still time to avoid this vicious cycle. When Congress returns, some will be lame ducks, and for all, the next election will be at least two years off. If members of Congress seriously care about their prerogatives, they will have no excuse for again ducking their constitutional responsibility. And this President will have those same years to consider what his constitutional legacy will be. History will treat this President far better if he leaves office not just having fought the Islamic State, but having lived up to his promise to put us on the path toward ending the Forever War.

That is, Koh still clings to the fantasy that the President will agree to limit his own authority when Congress won’t force him to do so.

Goldsmith, on the other hand, presents Koh’s painful somersaults as endorsement of the notion that Islamic extremism will remain a threat for the foreseeable future, and therefore Congress may finally replace the 2001 AUMF with something that better authorizes Forever War for the long haul.

I always thought the debates about what to do with the 2001 AUMF – repeal it, let the President interpret it flexibly, or replace it with a more rigorous updated authorization – turned on intuitions about the persistence and danger posed by Islamist terrorists.  It is now clear that the Islamist terrorist threat is not dissipating anytime soon.  It is also clear that the President’s interpretation of the 2001 AUMF to fight this threat, whether lawful or not, is certainly a stretch, even on Koh’s account.  It is also pretty clear, finally, that Congress will not easily authorize wars on a threat-by-threat basis.  So perhaps now we can start talking about realistic statutory replacements for the 2001 AUMF.

For Koh, this is a choice between a legally defensible (in the short term) justification, and more legally justifiable way to bring the Forever War to a close. For Goldsmith, however, the choice is between a legally suspect justification for the Forever War, and a more defensible justification for the Forever War.

Forever War or Forever War.

Whichever you choose, the President will retain the authority to override limits on domestic spying (written by … Jack Goldsmith!), to override due process to drone-kill American citizens, to indefinitely detain men who were sold for a bounty, and to train and arm men we’ve given cause to loathe us. From time to time, Congress will be called on to stir itself from suckling, Matrix-like, on its Defense Contractor cash to approve funds and expand immunities. The fight Osama bin Laden started will continue to rot our government and Constitution. “They hate us for our freedoms,” they used to say, and now our experts embrace indefinitely signing away those freedoms in increasing bits, via legally suspect means or legally defensible.

All the while, this Forever War will suck up money that should be spent funding things like education and infrastructure, things that used to sustain America’s vitality. And the constant threat inflation needed to justify this Forever War will distract from far more pressing threats, like climate change and Ebola and reckless banksters.

Perhaps the only thing that hasn’t worked as OBL wanted is that America’s refusal to deal with climate change will kill devout Muslims in far greater numbers, at first, than it will Americans.

Institutionalizing the Forever War might as well be declaring victory for OBL.

The most telling part of this exchange, though, is how Koh, after having referred to a bunch of fellow law professor critics as “commentators,” then called law professor Mary Ellen O’Connell, writing for a publication with greater reach and news credibility than the legal blog Just Security that Koh was writing in, “the blogosphere.” Read more →

Whither the Assassination Consideration?

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As I noted earlier, I’m doing a fairly detailed comparison of what parts of the white paper don’t show up in the drone memo released Monday. But that’s going to take a while.

Far easier is to compare what Charlie Savage’s sources said the memo included but doesn’t.  I’ve noted before that they told him there was one memo when there were really two. Given these discrepancies, it’s possible they merged the two memos in their descriptions:

  • Savage’s sources said the memo was “roughly 50 pages;” it is 41
  • Savage’s sources said the memo was “completed around June 2010;” it was completed on July 16 (remember, too, that Scott Shane FOIAed the memo in June 2010)

Other than those details, Savage’s story maps the actual memo very closely, down to the caveat that,

The memorandum, which was written more than a year before Mr. Awlaki was killed, does not independently analyze the quality of the evidence against him

Similar caveats appear repeatedly in the memo (most OLC memos start that way, and a redacted footnote in this apparently lays that out, but this one repeated it several times later in the analysis).

Savage’s report of the content of the memo starts — as the memo itself does (though this is redacted; see page 41 for a description of what appears in the redacted sections) — with a description of the claims the Intelligence Community used to claim Awlaki qualified as a target under the AUMF. Significantly, this includes the claim that “a pattern of activities [] counterterrorism officials have said show[] that he had evolved from merely being a propagandist … to playing an operational role.” Later the memo refers to Awlaki recruiting, which I suspect may be an artifact of the argument they made in February 2010, based on what Dennis Blair said publicly at the time. So I find this claim of a progression of particular interest (not least because it’s another reason why this memo simply could not cover the attempt to kill Awlaki on December 24, 2009).

Before Savage’s report turns to the consideration of 18 USC 1119 — which is where the memo starts its analysis — it describes a section considering whether the “ban” (in an unenforceable Executive Order that gets changed from time to time without notice in the actual text) on assassinations would prohibit such a killing.

It then considered possible obstacles and rejected each in turn.

Among them was an executive order that bans assassinations. That order, the lawyers found, blocked unlawful killings of political leaders outside of war, but not the killing of a lawful target in an armed conflict.

No discussion of assassination appears in the memo (unless it appears in a classified section and is not noted by the court opinion, but that seems unlikely as there’s no logical place for it). That said, the “ban” on assassinations did appear prominently in Harold Koh’s justification for drones given in March 2010.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.” 

This leads me to suspect the structure of the first memo may parallel the structure of Koh’s speech, with the assassination “ban” figuring prominently in that memo. That is, it seems likely Savage’s sources, in conflating the two memos (if that’s what they did), included that language because it appeared in the first memo.

From that deviation, however, the report in Savage’s story returns to its close match of the actual drone content, with one exception and one area where Savage’s report probably reflects something redacted in our version of the memo.

  • Consideration of 18 USC 1119 (though Savage doesn’t talk about the heightened importance of this analysis for CIA)
  • Consideration of War Crimes Act
  • Consideration of the Fifth and Fourth Amendments

The part that Savage includes but doesn’t appear in the declassified memo is this bit:

But that raised another pressing question: would it comply with the laws of war if the drone operator who fired the missile was a Central Intelligence Agency official, who, unlike a soldier, wore no uniform? The memorandum concluded that such a case would not be a war crime, although the operator might be in theoretical jeopardy of being prosecuted in a Yemeni court for violating Yemen’s domestic laws against murder, a highly unlikely possibility. [my emphasis]

That italicized bit doesn’t appear in what we got Monday (though the acknowledgment that CIA officers would not have immunity in footnote 44 addresses precisely the same legal issue), but there is a redacted section on page 38 that may well acknowledge that point.

Finally, there’s the one section of the memo that neither Savage’s sources nor DOJ, in summarizing the memo in the white paper, included: section IV, which considers whether killing Awlaki would violate 18 USC 956(a)‘s prohibition on conspiring within the US to carry out kidnapping or murder overseas. I find that curious and, because they appear to be suppressing it, worthy of more examination. Does the apparently consistent effort not to acknowledge that this might apply reflect some insecurity about the strength of this argument?

Like Obi Wan, Osama bin Laden Has Come Back More Powerful Than Ever Before

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In a piece that serves only to claim we need even more invasive online surveillance because we’ve made al Qaeda more insidious than before Osama bin Laden died, Michael Hirsh tries to make Abu Musab al-Suri the new boogeyman (who, as J.M. Berger notes, may not even be alive!).

The truth is much grimmer. Intelligence officials and terrorism experts today believe that the death of bin Laden and the decimation of the Qaida “core” in Pakistan only set the stage for a rebirth of al-Qaida as a global threat. Its tactics have morphed into something more insidious and increasingly dangerous as safe havens multiply in war-torn or failed states—at exactly the moment we are talking about curtailing the National Security Agency’s monitoring capability. And the jihadist who many terrorism experts believe is al-Qaida’s new strategic mastermind, Abu Musab al-Suri (a nom de guerre that means “the Syrian”), has a diametrically different approach that emphasizes quantity over quality. The red-haired, blue-eyed former mechanical engineer was born in Aleppo in 1958 as Mustafa Setmariam Nasar; he has lived in France and Spain. Al-Suri is believed to have helped plan the 2004 train bombings in Madrid and the 2005 bombings in London—and has been called the “Clausewitz” of the new al-Qaida.

[snip]

But the agency’s opponents may not realize that the practice they most hope to stop—its seemingly indiscriminate scouring of phone data and emails—is precisely what intelligence officials say they need to detect the kinds of plots al-Suri favors.

[snip]

And the consensus of senior defense and intelligence officials in the U.S. government is that NSA surveillance may well be the only thing that can stop the next terrorist from blowing apart innocent Americans, as happened in Boston last April. “Al-Qaida is far more a problem a dozen years after 9/11 than it was back then,” [Navy Postgraduate School expert John] Arquilla says.

[snip]

Officials also say they need more intelligence than ever to determine which of the multifarious new jihadist groups is a true threat. “The really difficult strategic question for us is which one of these groups do we take on,” [Michael] Hayden says. “If you jump too quickly and you put too much of a generic American face on it, then you may make them mad at us when they weren’t before. So we are going to need a pretty nuanced and sophisticated understanding of where there these new groups are going and where we need to step up and intervene.”

Some officials suggest that to do that—to discriminate carefully between the terrorists who are directly targeting U.S. interests and those who aren’t—the United States needs to step up, not slow down, the NSA’s monitoring of potential targets. [my emphasis]

Hirsh doesn’t seem to notice it, but even while he quotes former and current architects of our counterterrorism strategy like Michael Hayden and Mike Rogers, if his tale is to be believed, you have to also believe those former and current counterterrorism leaders committed these grave counterterrorism failures:

  • Allowing no fewer than 25 failed states to flourish, especially in Yemen, Somalia, Syria, Libya, and Iraq
  • Failing to win or even establish governance in Afghanistan
  • Rendering al-Suri to Syria where he may or may not have been let free
  • Taking on Bashar al-Assad (who the article admits provided us counterterrorism support, including presumably proxy torturing al-Suri) even while not backing dictators who provide counterterrorism support during the Arab Spring
  • Abandoning Syrian rebels to Assad

Then Hirsh goes on to recite the debunked claims about how useful the Section 215 dragnet is (though curiously, he doesn’t mention Basaaly Moalin, perhaps because elsewhere Harold Koh admits that even most members of al-Shabaab aren’t members of al Qaeda, much less those who materially support al-Shabaab), how that would have (and, the implication is) and is the only thing that might have prevented 9/11.

Hirsh doesn’t even seem to notice that he repeats the claim that only NSA dragnets can prevent a Boston Marathon attack, yet NSA dragnets didn’t prevent the Boston Marathon attack.

Obviously, the whole thing is just as Mike Rogers/Michael Hayden sponsored advertisement to pass DiFi’s Fake FISA Fix (the article doesn’t address why she doesn’t just accept the status quo).

But in the process, Hirsh has instead laid out solid evidence we should never trust the people who’ve been running our war on terror for the last 12 years, because, if even a fraction of what he claims is true, they’ve actually made us far less safe.

Harold Koh Relitigates the Argument He Already Lost

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The NYT thinks the takeaway “news” of Harold Koh’s speech on Forever War is his call for more transparency on drone killing. Yet that Koh supports more transparency on drones is not news. Daniel Klaidman has been reporting that since January 2012.

What’s newsworthy about this call for transparency, though, is how shrill it is.

But since then, to be candid, this Administration has not done enough to be transparent about legal standards and the decisionmaking process that it has been applying. It had not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control. The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.

As a result, the public has increasingly lost track of the real issue, which is not drone technology per se, but the need for transparent, agreedupon domestic and international legal process and standards.

Perhaps this shrillness is why Koh ends the speech with a grandiose invocation of our “better angels.”

Because I am an American who loves his country, I have served it for ten years of my professional career. My former professor and former Legal Adviser Abram Chayes once said, after he had sued the United States government from the academy, “I have always thought there is nothing wrong with an American lawyer holding the United States to its own best standards.” It is in that spirit that tonight, from this important podium, I call my country to its own best values and principles. As President Lincoln famously said, there is still time–indeed, it is high time– for Americans once again to answer to the “better angels” of our national nature.

Though it should be noted that Attorney Abe Lincoln appealed for us to answer to our better angels at the beginning of his service in the Executive Branch, not after he had left that position of influence (something John Wilkes Booth prevented in any case). Why is Harold Koh saying this now?

After all, this battle, the battles for transparency, for “discipline” in the drone program, and for closing Gitmo, are all battles he fought and lost while he was still in government.

It’s how Koh relitigates the last of those battles, closing Gitmo, I find most interesting. He calls for the appointment of a Greg Craig type to implement the plan Craig tried to implement himself in the first year of the Obama Administration.

First, and foremost, he must appoint a senior White House official with the clout and commitment to actually make Guantanamo closure happen. There has not been such a person at the White House since Greg Craig left as White House Counsel in early 2010. There must be someone close to the President, with a broad enough mandate and directly answerable to him, who wakes up each morning thinking about how to shrink the Guantanamo population and close the camp.

Second, this White House Envoy need not develop a new paradigm for closing Guantanamo. He or she merely needs to implement the National Archives framework that the President announced three years ago. The White House Envoy should lead the Administration’s efforts to implement the three-part framework for closure of the Guantanamo detention facility specified in the President’s 2010 speech at the National Archives. That speech described a framework for how this closure could happen: through diplomatic transfers of those individuals who could be safely transferred, prosecution of those who can be tried before civilian courts when possible and military commissions where that is the only option, and third, by commencing the long-overdue legally mandated periodic review of so-called Law of War Detainees to see if any can be released, because of changes either in their attitude or in the conditions of the country to which they could be transferred.

Now, I’m all in favor of closing Gitmo and this might be one way to do it. Koh actually improves on the prior plan by admitting the indefinite detainees will have to be released as the war is over, which is legally correct but misapprehends why they’re not being released and why we have to have a Forever War to justify keeping them silent and imprisoned forever.

But Koh’s map for closing Gitmo also misrepresents why appointing Greg Craig himself to carry out the Gitmo task didn’t work. Read more →

Declaring “Wars” the President Didn’t Ask For

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I’ll probably have a few posts on Harold Koh’s speech opposing what he calls the “Forever War” at the Oxford Union. For now, I want to look at his argument against a new Authorization to Use Military Force.

I strongly disagree with those who claim that new legislation is now necessary to authorize the Administration to fight against new enemies. The burden of proving that such legislation would be either necessary or wise should fall on the proponents. As a lifelong international and constitutional lawyer who has worked on these legal issues for a decade, I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat. Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration. Nor would adopting new domestic legislation make actions in preemptive self-defense lawful under international law. And unless we can clearly define just who the new enemies are–and why existing legal authorities are insufficient to defend ourselves against them–we have no basis for passing new laws that would perpetuate the Forever War against shadowy foes whose association with those who have attacked us on 9/11 cannot be proven.

It’s hard to tell where the boundaries between good faith and deception lie here. After all, in several places in the speech — including this passage purportedly distinguishing what Obama has done from what Bush did — Koh’s language admits the possibility that Congressional sanction for military force is not the only authority Obama is working with (though he does admit that Congressional authority is one source of authority).

First, the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s s vague constitutional powers.

And so when he says things like “I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat,” it seems likely he’s preserving the ability to rely on Article II authority for something called an “imminent threat.” The same is true when he invokes “existing legal authorities” when he talks about fighting people who are clearly not Al Qaeda.

In other words, even while he seems to be opposed to treating our newer enemies as war opponents, he also seems to be reserving the right to rely on Article II authority to go after them. Which is not necessarily a better proposition for those who truly value other tools rather than killing.

That’s why I’m struck by this sentence.

Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration.

What Koh seems to be worried about is shifting the balance of the Youngstown test — whether Presidential power is expansive or limited — of the AUMF itself (Koh pretends authorizing military force is the same thing as declaring war, but in any case, last I checked, the authority to declare war belonged to Article I).

That’s true, first of all, because the way the existing AUMF was written — which allows the President to determine the enemy and has been interpreted consistently but wrongly as authorizing war powers here in the US. A new AUMF might (though probably wouldn’t) explicitly clarify the limits to war powers in the US or at least with US citizens.

But as even the 2012 NDAA showed, it can work the other way, with Congress requiring that Obama default to military detention and commissions with any new terrorist suspects. Mind you, Obama took the limits on what he could do in Gitmo far, far more seriously than he did the requirement that DOD give every one of its detainees a meaningful review, so he’s already picking and choosing what legislative requirements he fulfills. But in theory at least, Congress can mandate the President treat certain targets as enemies of war, rather than criminals.

But that, it seems to me, is ultimately what this debate about a new AUMF comes down to. Koh and, presumably, others who have served the President won’t want Congress to change the delicate balance that offers the President a great deal of flexibility to operate under both the AUMF and Article II. And to some degree, they’re right to worry about what batshit stuff the Lindsey Grahams of the world will mandate. But I suspect they’re just as worried that a new AUMF will put real limits to the President’s current fairly unlimited authority.

Look, I don’t trust Congress to write a new AUMF either. If they do one, it’s going to contain all manner of batshittery.

But bizarrely, in our crazy world, passing a new one might actually be a more effective way to limit what the President can and can’t do as anything else that has been tried. If we want to force the Executive Branch to stop waging war against Americans in America, we’re going to have to do so explicitly.

The Author of the White Paper, Stuart Delery, Argues Selective, Misleading Disclosures Should Not Be Checked by FOIA

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As I noted in this post, Daniel Klaidman has identified the author of the targeted killing white paper as Stuart Delery.

At the time he wrote the white paper, Delery was Senior Counselor to Attorney General Eric Holder. Last March, he became Principal Deputy Assistant Attorney General in the Civil Division of DOJ and, in the absence of an Assistant AG (or, as far as I can tell, even a nominee, in which case this feels a lot like what George Bush did with Steven Bradbury when he left the Acting head in charge for years on end), the Acting head of the Civil Division.

As I also noted, Delery actually argued the government’s case in the ACLU’s Drone FOIA on September 20, 2012. Now, that’s the ACLU’s other drone FOIA, not the one specifically requesting information that should have included the unclassified white paper Delery wrote if DOJ had answered the FOIA in good faith.

Nevertheless, it asked for closely related information:

The Request seeks a variety of records relating to the use of unmanned aerial vehicles to conduct targeted killings, including the legal basis for the strikes and any legal limits on who may be targeted; where targeted drone strikes can occur; civilian casualties; which agencies or other non-governmental entities may be involved in conducting targeted killings; how the results of individual drone strikes are assessed after the fact; who may operate and direct targeted killing strikes; and how those involved in operating the program are supervised, overseen or disciplined.

At the time ACLU submitted the request on January 13, 2010, Delery was in the Deputy Attorney General’s Office. DOJ responded to its part of the FOIA on February 3, 2010 — 16 days after DOJ worked on a briefing on targeted killing Eric Holder would make to President Obama and 15 days after he delivered that briefing — by claiming only FBI would have responsive records. When FBI searched its records it found none. DOJ made that initial response 6 days before someone in DAG — Delery’s office — wrote an email to OLC about the Holder briefing.

So while DOJ’s non-responsiveness in the drone FOIA is not as egregious as it was in the Awlaki FOIA, it’s still clear that the department Delery worked in, if not (as in the Awlaki FOIA) Delery’s work itself, was shielded from FOIA by a disingenuous FOIA response.

Yet Delery, the Acting head of the Civil Division, nevertheless decided he should argue the government’s case. Technically, Delery was arguing for CIA’s right to pretend it hadn’t confirmed its role in drone strikes in spite of repeated public statements doing just that, so he wasn’t defending the non-disclosure of his Department’s work, per se. Still, it’s not generally considered good form for a lawyer to argue a matter in which he has been so closely involved. He did so, however, at a time before we knew just how centrally involved he was in this matter.

With all that in mind, I thought I’d look at what Delery said to the DC Circuit.

MR. DELERY: May it please the Court, Stuart Delery for the Appellee, CIA.

This Court in several cases has identified two important interests that the strict test for official confirmation serves. It protects the Government’s vital interest in information related to national security and foreign affairs, and it advances FOIA’s interest in disclosure by not punishing officials for attempting to educate the public on matters of public concern because otherwise officials would be reluctant to speak on important national security matters.

Here, the Government has acknowledged that the United States makes efforts to target specific terrorists as part of its counter-terrorism operations, that as part of those operations or, in some cases, those operations involve the use of remotely piloted aircraft or drones, and it’s also described the legal framework and standards that apply in this context in a series of speeches and interviews including by the President’s counter-terrorism advisor, John Brennan, but also the Attorney General, the legal advisor to the State Department, the General Council of DOD, and as has been  referenced in yesterday’s or the recent exchange of 28J letters including a recent interview by the President. But, there’s been no official acknowledgment one way or the other about whether the CIA is involved in these particular operations. [my emphasis]

Delery suggests that a series of Leon Panetta comments (both before and after he moved from CIA to DOD) making the CIA’s role in drone killing clear should not amount to confirmation that the CIA is involved in drone killing because, he says, FOIA’s interest in disclosure should not punish public officials for attempting to educate the public.

Or, to put it another way, the Administration giving a bunch of self-serving speeches should not then make the topic of those speeches subject to FOIA because, in Delery’s mind, that would work contrary to FOIA’s support for disclosure because it would punish officials for giving self-serving speeches.

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Harold Koh and the First Office of Legal Counsel Memo

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When I compared what appeared in Eric Holder’s March 2012 targeted killing speech and the targeted killing white paper, I discovered two sections that appear in Holder but not the white paper: a section on leaders as targets.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

And a section asserting that the technology of drones doesn’t change the legal principles behind the use of lethal force.

These principles do not forbid the use of stealth or technologically advanced weapons.   In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.

But that language was not new to the Holder speech; it appears as two of the main bullet points in Harold Koh’s March 2010 speech addressing, in part, our use of drones.

First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

In addition to situating drone strikes within law of war principles, Koh also addressed two other issues that show up in the white paper (and Holder’s speech): due process and assassinations.

Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

I raise all this because Koh’s speech comes between the reported date of the first targeted killing memo — February 2010 — and the date of the second one. (h/t to Snoopdido for pointing this out)

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Targeted Killing Timeline

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A timeline!

I’ve been working on this timeline for almost nine months, trying to pull together the known dates about strikes against Americans, the evidence supporting the strike against Anwar al-Awlaki, the legal cases surrounding both targeted killing and torture, to which targeted killing is linked via the Memorandum of Notification, and Congressional efforts to exercise oversight.

September 17, 2001: George Bush signs Memorandum of Notification (henceforth, Gloves Come Off MON) authorizing a range of counterterrorism techniques, including torture and targeted killing.

September 18, 2001: Congress passes the Authorization to Use Military Force.

November 3, 2002: US citizen Kamal Derwish killed in drone purportedly targeting Abu Ali al-Harithi.

Late 2008: Ruben Shumpert reported killed in Somalia.

June 24, 2009: Leon Panetta gets briefed on assassination squad program.

June 26, 2009: HPSCI passes a funding authorization report expanding the Gang of Eight briefings.

July 8, 2009: The Administration responds with an insulting appeal to a “fundamental compact” between Congress and the President on intelligence matters.

July 8, 2009: Silvestre Reyes announces CIA lied to Congress.

October 26, 2009: British High Court first orders British government to release language on Binyam Mohamed’s treatment.

October 28, 2009: FBI kills Imam Luqman Asmeen Abdullah during Dearborn, MI arrest raid.

October 29, 2009: Hearing on declassifying mention of Gloves Come Off MON before Judge Alvin Hellerstein; in it, Hellerstein reveals NSA James Jones has submitted declaration to keep mention of MON secret.

November 5, 2009: Nidal Hasan attacks Fort Hood, killing 13.

December 24, 2009: JSOC tries but fails to hit Anwar al-Awlaki. On that day, the IC did not yet believe him to be operational.

December 25, 2009: With Umar Farouk Abdulmutallab attack, FBI develops full understanding of Awlaki’s operational goals.

January 2, 2010: In conversation with David Petraeus, Yemeni President Ali Abdullah Saleh http://www.cablegatesearch.net/cable.php?id=10SANAA4“>speaks as if Awlaki, whom he refers to as a cleric, not an AQAP member, was a designated target of December 24 attack.

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