All Sides Agree There Is Excessive Secrecy Surrounding Targeting Of US Citizens

The targeted execution of Anwar al-Awlaki struck different people along the political spectrum in the United States in many different ways, but it has been heartening most all have recognized it as a seminal moment worthy of dissection and contemplation. Despite all the discussion afforded the execution of Awlaki in the last few days, it cannot be emphasized enough how impossible it is to have a completely meaningful discussion on the topic due to the relentless blanket of secrecy imposed by the United States government. Before I get into the substantive policy and legal issues surrounding the targeting and assassination of American citizens, which I will come back to in a separate post, a few words about said secrecy are in order.

The first to note, and complain of, the strange secrecy surrounding not just the kill listing of Awlaki, but the entire drone assassination program, was Marcy right here in Emptywheel. Within a couple of hours of the news of the Awlaki strike, she called for the release of the evidence and information serving as the Administration’s foundation for the extrajudicial execution of an American citizen and within a couple of hours of that, noted the ironic inanity of the pattern and practice of the one hand of the Obama Administration, through such officials as Bob Gates, James Clapper and Panetta trotting out “state secrets” to claim drone actions cannot even be mentioned while the other hand, through mouthpieces such as John Brennan are out blabbing all kinds of details in order to buck up Administration policy.

Now, you would expect us here at Emptywheel to vociferously complain about the rampant secrecy and hypocritical application of it by the Executive Branch, what has been refreshing, however, is how broad the spectrum of commentators voicing the same concerns has been. Glenn Greenwald was, as expected, on the cause from the start, but so too have voices on the other side of the traditional spectrum such as the Brookings Institute’s Benjamin Wittes, to former Gang of Eight member and noted hawk Jane Harman, and current Senate Armed Services Chairman Carl Levin and Daphne Eviatar of Human Rights First.

But if there were any doubt that it was just left leaning voices calling for release of targeting and legal foundation information, or only sources such as Emptywheel or the New York Times pointing out the hypocrisy and duplicity with which the Administration handles their precious “state secret”, then take a gander at what former Bush OLC chief Jack Goldsmith had to say Monday, after a weekend of contemplation of the issues surrounding the take out of Awlaki:

I agree that the administration should release a redacted version of the opinion, or should extract the legal analysis and place it in another document that can be released consistent with restrictions on classified information.

I have no doubt that Obama administration lawyers did a thorough and careful job of analyzing the legal issues surrounding the al-Aulaqi killing. The case for disclosing the analysis is easy. The killing of a U.S. citizen in this context is unusual and in some quarters controversial. A thorough public explanation of the legal basis for the killing (and for targeted killings generally) would allow experts in the press, the academy, and Congress to scrutinize and criticize it, and would, as Harman says, permit a much more informed public debate. Such public scrutiny is especially appropriate since, as Judge Bates’s ruling last year shows, courts are unlikely to review executive action in this context. In a real sense, legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration.

Jack has hit the nail precisely on the head here, the courts to date have found no avenue of interjection, and even should they in the future, the matter is almost surely to be one of political nature. And accountability of our politicians depends on the public havin sufficient knowledge and information with which to make at least the basic fundamental decisions on propriety and scope. But Mr. Goldsmith, admirably, did not stop there and continued on to note the very hypocrisy and duplicity Marcy did last Friday:

We know the government can provide a public legal analysis of this sort because presidential counterterrorism advisor John Brennan and State Department Legal Advisor Harold Koh have given such legal explanations in speeches, albeit in limited and conclusory terms. These speeches show that there is no bar in principle to a public disclosure of a more robust legal analysis of targeted killings like al-Aulaqi’s. So too do the administration’s many leaks of legal conclusions (and operational details) about the al-Aulaqi killing.

A full legal analysis, as opposed to conclusory explanations in government speeches and leaks, would permit a robust debate about targeted killings – especially of U.S. citizens – that is troubling to many people. Such an analysis could explain, for example, whether the government believed that al-Aulaqi possessed constitutional rights under the First, Fourth, Fifth or other amendments, and (assuming the government concluded that he possessed some such rights) why the rights were not implicated by the strike. It could also describe the limits of presidential power in this context.

The Obama administration frequently trumpets its commitment to transparency and the rule of law. The President and many of his subordinates were critical of what they deemed to be unnecessarily secretive Bush administration legal opinions, and they disclosed an unprecedented number of them, including many classified ones. Now is the time for the administration to apply to itself a principle that it applied to its predecessor.

Again, exactly right. From Marcy Wheeler, to Gang of Eight members, to Jack Goldsmith, the voice is both clear and consistent: The Obama Administration needs to come clean with as much of the legal and factual underpinnings as humanly possible short of compromising “means and methods” that truly are still secret. That would be, by almost any account, a lot of information and law with which the American public, indeed the world, could not only know and understand, but use to gauge their votes and opinions on. Doing so would make the United States, and its actions, stronger and more sound.

In the second part of this series, which I should have done by tomorrow morning sometime, I will discuss what we know, and what we don’t know, about the legal and factual underpinnings for targeted killing of US citizens, and sort through possible protocols that may be appropriate for placement of a citizen target and subsequent killing.

UPDATE: As MadDog noted in comments, Jack Goldsmith has penned a followup piece at Lawfare expounding on the need for release of the foundational underpinnings of how an American citizen such as Alawki came to be so targeted. Once again, it is spot on:

First, it is wrong, as Ben notes, for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful). I do not know if the leaks are authorized in some sense or not, or where in the executive branch they come from, or what if anything the government might be doing to try to stop them. But of course the president is ultimately responsible for the leaks. One might think – I am not there yet, but I understand why someone might be – that the double standard on discussing covert actions disqualifies the government from invoking technical covertness to avoid scrutiny.

Second, there is no bar grounded in technical covertness, or in concerns about revealing means and methods of intelligence gathering, to revealing (either in a redacted opinion or in a separate document) the legal reasoning supporting a deadly strike on a U.S. citizen. John Brennan and Harold Koh have already talked about the legality of strikes outside Afghanistan in abstract terms, mostly focusing on international law. I don’t think much more detail on the international law basis is necessary; nor do I think that more disclosure on international law would do much to change the minds of critics who believe the strikes violate international law. But there has been practically nothing said officially (as opposed through leaks and gestures and what is revealed in between the lines in briefs) about the executive branch processes that lie behind a strike on a U.S. citizen, or about what constitutional rights the U.S. citizen target possesses, or about the limitations and conditions on the president’s power to target and kill a U.S. citizen. This information would, I think, matter to American audiences that generally support the president on the al-Aulaqi strike but want to be assured that it was done lawfully and with care. The government could easily reveal this more detailed legal basis for a strike on a U.S. citizen without reference to particular operations, or targets, or means of fire, or countries.

Listen, we may not always agree with Jack here, and both Marcy and I have laid into him plenty over the years where appropriate; but credit should be given where and when due. It is here. And, while I am at it, I would like to recommend people read the Lawfare blog. All three principals there, Ben Wittes, Goldsmith and Bobby Chesney write intelligent and thoughtful pieces on national security and law of war issues. No, you will not always agree with them, nor they with you necessarily; that is okay, it is still informative and educational. If nothing else, you always want to know what the smart people on the other side are saying.

[Incredibly awesome graphic by the one and only Darkblack. If you are not familiar with his work, or have not seen it lately, please go peruse the masterpieces at his homebase. Seriously good artwork and incredible music there.]

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
22 replies
  1. rugger9 says:

    There was an odd discussion in [I believe] USA Today that Al-Awlaki may not have been killed by the drone, in other words “collateral damage”. The fact that Samir Khan was killed without being as far as we know discussed in any way as an enemy of the state, by indictment or notice or any other detectable means, needs more play as well. EW led the way on that aspect as well, but no one is paying any attention to the fact that an American was killed by his government without any notice, much less due process.

    Who decides that someone is an enemy of the state, and what criteria do they use? Does anyone want any GOP/teabagger with that kind of power?

  2. earlofhuntingdon says:

    Mr. Obama, at least as much as Mr. Cheney, acts as if the public has no duty, obligation or right other than to vote for him every upteen years, and therefore, no right to know what he knows or does, how or when. Both parties, it seems, want to keep their publics ignorant, barefoot, pregnant, and in the kitchen. That’s one bipartisan consensus that ought to land Mr. Obama in hot water as he hits the stumps to ask Americans for their permission to remain a public employee and the right to continue to live in that early 19th century mansion on Pennsylvania Avenue, NW.

  3. earlofhuntingdon says:

    The problem with facts is that they have an inherent liberal bias. They can also be the basis for opinions of vastly different stripes. Revealing the legal “analysis” Mr. Obama relies on for his assertion that he has a license to kill in this fashion could be more embarrassing than revealing Mr. Yoo’s “analysis” was to his political sponsors.

  4. JohnLopresti says:

    So, how much Bushco olc unitary executive opinionwriting served Obamaco? Yoo rambling reasoning? Goldsmith law of the sea? There are other notable document-monuments to committeespeak from Bushco years which might be sources in the olc footnotes for Obamaco. Some of the documents from Bushco emptywheel examined even were simple checklists produced like notes without letterhead. But I ain’t gonna bash O’co. After the news of the drone event appeared, I looked back at a 1907 novel written by a professor called Miguel de Unamuno, published in 1914 and in other editions, as various forms of censorship shifted in the country in which it appeared; the book pretends to be literal but is a work of craft in reduction to tautology; and, as such, literarily speaking here, was very much centrist for its day in artistic terms, as “extentialist” questions began troubling thinkers in europe. The novel was called Niebla. It does poorly in translation. One commenter in one of emptywheel’s first threads about the drone incident invoked a Heller novel; one which I found too dull to read; yet, having skimmed it in some poorly lit bookstore on a few occasions, I thought that commenter, too, neared an important element in the geopolitics of citizenhood, the latter three words being an interesting challenge of precisely the sort Unamuno’s theme would have pursued, when translated into spanish.

  5. Don Bacon says:

    There were no “legal and factual underpinnings” which is why Awlaki (like OBL) had to be killed. If they did have legal and factual underpinnings then they would have captured and tried them, as they have others.

    Legal and factual underpinnings is an example of old thinking.

    More and more, the conflicts that the US are in, are conflicts of ideas, using propaganda. The Pentagon calls it Strategic Communications and also it recognizes that it isn’t very good at it. Rumsfeld in particular used to marvel at how good, in his opinion anyhow, the mighty al-Qaeda (mostly a fabrication) was in convincing people to oppose the US.

    These kinds, of enemies, to the US leaders are the most dangerous because while they don’t commit conventional crimes, they are very good at propagandizing, and so they have to go. In that sense due process for mouthy (but can’t be convicted) US enemies is to zap ’em. They didn’t have anything convincing or illegal on Awlaki so they killed him because of his big mouth, that’s all.

  6. MadDog says:

    Jack Goldsmith over at Lawfare again today wrote on this issue:

    “More on al-Aulaqi and Transparency

    …First, it is wrong, as Ben notes, for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful)…

    [snip]

    …[T]here has been practically nothing said officially (as opposed through leaks and gestures and what is revealed in between the lines in briefs) about the executive branch processes that lie behind a strike on a U.S. citizen, or about what constitutional rights the U.S. citizen target possesses, or about the limitations and conditions on the president’s power to target and kill a U.S. citizen. This information would, I think, matter to American audiences that generally support the president on the al-Aulaqi strike but want to be assured that it was done lawfully and with care. The government could easily reveal this more detailed legal basis for a strike on a U.S. citizen without reference to particular operations, or targets, or means of fire, or countries.”

  7. William Ockham says:

    I suppose seeing the reasoning would be enlightening, but it wouldn’t change the fact that it inherently boils down to “because I said so”. If the release the legal opinion, it will inevitably say given some “fact pattern” it is ok to off an American. But the existence of that “fact pattern” in any given case will be classified.

    And what does it matter that the American citizen has to be overseas. The government can always just kidnap you, dump you some place like Yemen and then call down the drone strike.

  8. Mary says:

    @MadDog: “First, it is wrong, as Ben notes, for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications.” Says the guy who didn’t feel any need to correct the record on CONGRESSIONAL TESTIMONY (not just a self-serving leak) as to waterboarding (3 times) despite his knowledge to the contrary. I’m missing that piece where he took on Elmer Fudd’s evil twin …

  9. Mary says:

    @William Ockham: Exactly – as they started to do with taking prospective “enhanced interrogation” recipients to Bagram when GITMO became more problematic. And it will depend a lot on defintions of things like “operational” and “battlefield” and “imminent” that will relate back to other OLCs as well.

    bmaz, what happened to Cap’n Jack’s prior argument, touched on by ew here:
    http://www.emptywheel.net/2011/10/01/anwar-al-awlaki-assassination-double-secret-illegitimacy/
    that it’s a fun time for all to kill a US citizen “because the other country consents to them or is unable or unwilling to check the terrorist threat, thereby bringing America’s right to self-defense into play”

    Ok ok – I guess I have to wait for part 2, but it’s interesting to see how Goldsmith likes the “blowing in the wind” approach to analysis.

  10. MadDog says:

    @Mary: Yeah, Jack wants to have his cake and eat it too. A bit of both partisanship attack on a Democratic Administration and sleight-of-hand “I support the Constitution” forgetfulness about past deeds.

  11. bmaz says:

    @Mary:

    Uh, yeah, crikey, teh natives, they are getting a restless. I said there would be a part two dealing with such things. If I can stay enough away from the fine liquid products of yer state, you can dump on me about that tomorrow morning!

    But, seriously, you do not have to agree with each other on everything for it to be useful to have common ground and, indeed, that is exactly my point.

  12. Mary says:

    @bmaz: Sometimes, it’s the common ground that makes for the longest lasting battles. *g* Seriously – it’s wonderful that you and EW et al gut it out to read Goldsmith and Yoo and Issa and Cheney and the whole raft of them. I’d consider some bourbon to be a cleansing ritual after that.

  13. orionATL says:

    the murder of american citizen al-awlaki and of american citizen khan, from a constitutional perspective, stands thusly:

    – al-awlaki and khan were both american citizens. al-a was born here and lived here for 7 yrs. his family then moved back to yemen. al-a returned to the u.s. for his college degree.

    subsequently, al-a became a muslim pastor. he led worship in muslim churches on the west coast and, later, on the east coast. he is said to have been a pastor for two of the 19 saudis who used planes as bombs on sept 11, 2001.

    a year plus after sept 2001, al-a returned to yemen. in yemen he continued his work as a muslim pastor. his rhetoric angrily challenged the right and propriety of the u.s. “meddling” perpetually in arab affairs, largely due to the influence of israel in american politics.

    so

    – an american president ordered an american citizen murdered by a secret american govt agency (cia).

    – this citizen (and fellow murderee, american citizen khan) had a right to speak out, an almost absolute right to speak out, guaranteed by the first amendment to the u. s. constitution.

    – al-a’s speech was specifically aimed, was angrily criticizing, the actions of his government, specifically, the foreign policy actions of his government.

    consider that!

    al-a was murdered by the u.s. govt because he was criticizing in angry terms the foreign policy actions of the u.s. govt.

    what impresses me, very negatively, about this post, and the comments associated, is how y’all just can’t bring yourselves to tell it like it is.

    lots of chat, lots of “jack”,

    and very damned little of anger that our govt just committed an unforgivable and monstrously unconstitutional act.

    but then, when, these days, would one ever expect an american lawyer or an american judge to be sufficiently sensitive to injustice done to speak out on, let alone act act on, that sensitivity?

    what will you say ten years from now?

    when a white, lived-here-all-her-life american citizen criticizes the govt, the prez, or the congress angrily.

    and is then lassoed by the persecutors at the dept of justice and “put away” for 10-15 yrs, thus silencing her critical voice?

    – that right included violent speech

  14. P J Evans says:

    @orionATL:
    I’m sufficiently unhappy with Mr Alleged Constitutional Lawyer and his buddies on various parts of government that I’d like to change my voter registration to something like Socialist. (Unfortunately, that’s not a ‘recognized’ party in my state.)

    The political goings-on don’t help my mental state at all.

  15. orionATL says:

    @P J Evans:

    mine neither.

    but it is really pride i’ m missing most.

    i was enormously proud of my country for most of my life.

    from december 2000 to october, 2011 there is nothing, nothing, to be
    proud of.

    that is a very great loss for me and i am unforgivingly angry at my
    loss.

  16. prostratedragon says:

    Meanwhile,

    (lest we lose sight of the clownishness in the service of which all of the above takes place) at D.C.-on-the-Lake, Mayor Emanuel’s response to a brewing scandal over kickbacks affecting the allocation of economic development funds is that no matter what they take away from him, they can’t take away his dignity!

    One reason this is so interesting is that the scandal ostensibly belongs to Emanuel’s predecessor, who of late has been a popular striking gong at City Hall.

  17. run along home says:

    Legal analysis, how nice! Knock yourselves out. Only, under universal jurisdiction humanitarian law, culpability for the crime of execution, like other war crimes of a non-national nature, does not depend on the legal opinion of the accused, but on the facts. They’re onto the trick of getting a lickspittle like Gonzales or Koh to write you a Get Out of Jail Free card. No foreign holidays for you cobags.

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