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.

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4 Responses to Another Republican Lawyer Warns Obama about Legal Problems

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Emptywheel Twitterverse
emptywheel @ddayen Salon heds will Salon hed.
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bmaz Conservatives ask SCOTUS to give conservatives more political power. http://t.co/oXODJqpMcN Excellent analysis by @rickhasen
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emptywheel @SamSacks I'm so old I remember when WaPo broke some of the first stories abt NSA collecting truck loads of metadata not under Section 215.
32mreplyretweetfavorite
emptywheel @0xdeadbabe FBI General Counsel told PCLOB he could think of 8-10 ways to get phone records back in 2013.
34mreplyretweetfavorite
bmaz @mattapuzzo @emptywheel @nicholasadeleon They are separate concepts, but intertwined on this question.
35mreplyretweetfavorite
emptywheel "NSA would have no clear power to conduct any metadata collection, possibly indefinitely." http://t.co/JjD7vwBUnw WP never heard of EO12333
36mreplyretweetfavorite
bmaz @mattapuzzo @emptywheel @nicholasadeleon And even if it is minimally "legal" is this proper for procedural due process+interests of justice?
36mreplyretweetfavorite
bmaz @mattapuzzo @emptywheel @nicholasadeleon Or is it just being shoehorned into EDNY because it is oh so much more convenient for DOJ?
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emptywheel @mattapuzzo Right. But in Miami. So why not charge in Miami? @bmaz @nicholasadeleon
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bmaz @mattapuzzo @emptywheel @nicholasadeleon Not so fast! Did those acts happen in EDNY? If not, will venue be transferred to where they did?
38mreplyretweetfavorite
bmaz @emptywheel @nicholasadeleon @mattapuzzo Right, it may not even be stretching credulity as in some others but am curious as to claimed basis
41mreplyretweetfavorite
bmaz @mattapuzzo @emptywheel And DOJ is getting increasingly fast+loose about pigeonholing jurisdiction+venue where it doesn't necessarily belong
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