Another Republican Lawyer Warns Obama about Legal Problems

I know it’s probably easy for Obama supporters, if not members of the Administration, to dismiss the warnings of lawyers who fought within the Bush Administration to cloak our counterterrorism policy in legal sanction as trolling.

But you’d think that as Jack Goldsmith and now John Bellinger raise the same kind of warnings they did with Bush, they’d be treated with the same kind of alarm among the pundit class.

I have been warning for several years about the international legal risks posed by the Obama Administration’s heavy reliance on drone strikes, including my Post op-ed in October 2011 entitled “Will Drone Strikes Become Obama’s Guantanamo?”   This article was not intended as partisan criticism but rather as a cautionary note, based on my own eight years of experience explaining US counter-terrorism policies.

At the time I wrote it, I thought there was perhaps only a 25% chance that Obama’s drone strikes would become as internationally maligned as Guantanamo, given the preference of human rights groups and European governments to avoid criticising the Obama Administration.  But over the last eighteen months, I have seen a crescendo in international criticism, resulting in lawsuits in the US, Britain, and Pakistan, and a potential decrease in intelligence cooperation.  This has echoes of the rapid decline in European governmental support for US counterterrorism efforts after 9-11 as national parliaments pressed their governments to distance themselves from unpopular US policies.  I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law.   The Administration is increasingly on the back foot internationally in explaining and defending the legal aspects of the drone program.  It needs to step up its efforts.

These are not starry-eyed hippies. They’re solidly conservative lawyers. And yet it seems their warnings are being treated with the seriousness they would if I had made them.

One more point. As I traced last year, the White House’s unusual efforts to keep all mention of the “Gloves Come Off” Memorandum of Notification that authorizes many of these counterterrorism programs mapped closely to the exposure of Binyam Mohammed’s torture through an effort very nearly parallel to the suit Bellinger discusses in his post: Noor Khan’s suit against the UK for cooperating in the drone strike that killed his father.

The UK has used various strategies to try to hide its role in US covert operations: effectively a Glomar in this case, and a larger effort to create a secret court to hide our counterterrorism programs.

Maybe these British efforts will work. Maybe this particular ally will succeed in hiding the things we work hard to hide.

But not all of them will be.

The Administration seems increasingly committed to claiming all of this was a covert op, immune even from full disclosure to the Intelligence Committees, to say nothing of ordinary citizens. Perhaps it is so committed in an effort to avoid embarrassing our allies like this.

But it’s not fooling anyone.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

4 replies
  1. earlofhuntingdon says:

    Odd that Bellinger should have once thought that drones were unlikely to become targets of worldwide dissent. In weapons hot mode, they are the equivalent of a sniper team hovering over a victim’s backyard and waiting for a good shot. In intel mode, the are just as unnerving, like having a google street maps team in your bathroom, on your phone and in your computer. The range of visual and nonvisual data they can absorb is breathtaking.

    It doesn’t seem much of a come down, even for a Republican, to acknowledge that the rest of the world would not welcome such “tools” using their airspace at will, or raining explosive weapons on them. Then, again, these are Republicans. Like many Dems, they luxuriate in the billions spent on such tools and the unaccountable power they give to whomever controls the joy stick controller. Are they just telling Mr. Obama to do more of what he does best: institutionalizing the unthinkable and making it seem normal?

  2. P J Evans says:

    Holder, Brennan … who else can they indict? I’ve lost track of the ones pretending they’re in favor of practices they don’t actually follow.

  3. JohnT says:

    Another Republican Lawyer Warns Obama about Legal Problems

    Anonymous O admin official: “That lawyer must be some kind’a closeted pinko commie islamo fascist marxist librul DFH that hates Murica”


  4. JohnT says:

    Oh, happened to watch Fox News yesterday, and some blowhard made a good point (a broken clock is correct occasionally, right?). He said (paraphrasing) the reason Zero was using drones to kill people over there, was so that he wouldn’t get reamed over the bad publicity by waterboarding, and / or imprisoning more people at Gitmo

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