Obama Bypassed OLC on Bin Laden Killing

Obama_and_Biden_await_updates_on_bin_LadenThere’s a name missing from Charlie Savage’s latest — a description of the legal analysis behind Osama bin Laden’s killing: Caroline Krass, who served as Acting Head of DOJ’s Office of Legal Counsel from January to September 2011. She’s not mentioned, apparently, because she was not among the four lawyers who collaborated on five memos deeming the raid to be legal.

Weeks before President Obama ordered the raid on Osama bin Laden’s compound in May 2011, four administration lawyers hammered out rationales intended to overcome any legal obstacles — and made it all but inevitable that Navy SEALs would kill the fugitive Qaeda leader, not capture him.

[snip]

Just days before the raid, the lawyers drafted five secret memos so that if pressed later, they could prove they were not inventing after-the-fact reasons for having blessed it. “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly,” said Stephen W. Preston, the C.I.A.’s general counsel, according to officials familiar with the internal deliberations.

[snip]

This account of the role of the four lawyers — Mr. Preston; Mary B. DeRosa, the National Security Council’s legal adviser; Jeh C. Johnson, the Pentagon general counsel; and then-Rear Adm. James W. Crawford III, the Joint Chiefs of Staff legal adviser — is based on interviews with more than a half-dozen current and former administration officials who had direct knowledge of the planning for the raid.

The account makes it quite clear that Eric Holder was excluded from discussions.

On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.

This means that on the OBL raid, Donilon excluded the Attorney General in the same way Dick Cheney excluded John Ashcroft from key information about torture and wiretapping. I find that interesting enough, given hints that Holder raised concerns about the legal authority to kill Anwar al-Awlaki in the weeks after we missed him on December 24, 2009, which led to OLC writing two crappy memos authorizing that killing in ways that have never been all that convincing.

But Savage provides no explanation for why Krass was excluded, which is particularly interesting given that the month after OBL’s killing, Savage revealed that President Obama had blown off Krass’ advice on Libya (as I read it, the decision to blow off her advice would have happened after the OBL killing, though I am not certain on that point). The silence about Krass is also remarkable given that she was looped in on the initial Libya decision — and asked to write a really bizarre memo memorializing advice purportedly given after the fact.

On Libya, Krass was looped in on questions addressing precisely the same issues addressed in the OBL killing (indeed, we were assassinating Qaddafi’s family members in Libya, which should have presented many of the same legal questions) both before and (as I understand it) after the OBL killing, but she was apparently not read in at all on the OBL killing itself.

There’s one more reason I think the question of OBL’s killing was more uncertain than laid out here. Savage reveals that even though lawyers had authorized not telling Congress about the raid, Leon Panetta did so on his own anyway.

Mr. Preston wrote a memo addressing when the administration had to alert congressional leaders under a statute governing covert actions. Given the circumstances, the lawyers decided that the administration would be legally justified in delaying notification until after the raid. But then they learned that the C.I.A. director, Leon E. Panetta, had already briefed several top lawmakers about Abbottabad without White House permission.

This is the action of someone — rightly — covering his ass, doing what the law actually requires rather than what his lawyer says it permits.

By the way, any bets on whether SSCI got a copy of that Preston memo, stating that they didn’t need to be informed on covert operations, contrary to the clear language of the National Security Act, before they approved his promotion from CIA General Counsel to DOD General Counsel (where he remains)? I bet no.

Ultimately, Savage depicts an Administration going even further than Cheney had on inventing legal authorizations for secret actions. Obama (and Donilon) will never catch heat for it like Cheney did, because everyone likes dancing on OBL’s watery grave. But make no mistake, this exhibits some of the same behaviors as we criticize Cheney for.

Update: I find this, from Savage’s June 2011 story on Krass, of particular interest given Savage’s description of the decision process on OBL.

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, Ms. Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

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.

15 replies
  1. P J Evans says:

    That was … really stupid. Especially with administrations that treat DOJ and OLC as the president’s personal attorneys.

  2. orionATL says:

    from nytimes:

    “… the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.
    A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama…”

    .
    .

    well, well. one begins to wonder then – about the obama administrations’s murder of american citizen anwar al-awlaki.

    remember the stories about how carefully the president had been shielded by layers of group decision making from having to pull the trigger on that one?
    maybe those stories were fabrications of the sort this administration is quite skilled at – drones, you know, are very precise instruments of revenge.

    i’ve always been skeptical of the “he was operational” rationalization for offing al-a. i’m betting good money he was killed as an example to others’, as was his young son. and because he was a very effective political spokesman. free speech can be costly to an american.

  3. orionATL says:

    oh, and i meant to mention, does this not seem parallel to what seymour hirsh reported on the immediate aftermath of the bin-laden execution? the administration proceeded in great secrecy and had a carefully worked out tale to tell the world – burial at sea and all that.

    prior to the assination, savage reports, the admin proceeded in great secrecy and had a carefully worked ouf legal rationalization.

    now we know why the obama administration went after the nsa and cia whistleblowers for what were legally trivial whistleblowing. these whistleblowers were being hung from lampposts, not for the consequences of their particular whistlebowing, but as a dead-body warning to the rest of the government workforce and military – don’t talk about our seriously illegal activities.

    • orionATL says:

      so now we are left to speculate justcwhat other severelyvillegal activities did thecobama adminvundertake and then scratch over with some plausible sounding tale.

      i doesn’t seem obama and co. were as concerned plausible deniability as they were about concocting plausible lie-ability.

      • jo6pac says:

        Thanks for the wonderful wordsmithing thingy.

        Thanks EW. rage is my only feeling as I go off to heat up left overs and pour more whine;(

        • orionATL says:

          thanks. i really appreciate that.

          a lot of us are angry at the strange goings-on in our society these days. i don’t know what else to do but rage against it and show up to vote. leadership it turns out is a very, very short supply.

    • orionATL says:

      a further implication of having the doj persecute to the maximum whistleblowers who had legally trivial offences, in order to scare contemporary whitehouse, government, and military employees into keeping quiet about what they heard, is that these cases were legal fictions, fictions just like the obama legal fictions vis-a-vis assassinating bin-laden.

      the kiriakou and sterling cases were particularly egregious mistreatments of these men. too bad the judges involved were such milquetoasts.

      and now we can better understand, too, the excessive use by this administration of the state’s secret legal sophistry.

  4. Don Bacon says:

    President Reagan, by Executive Order Executive Order 12333, outlawed assassinations. wiki–
    Part 2.11 of this executive order reiterates a proscription on US intelligence agencies sponsoring or carrying out an assassination.

    No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

    .
    Obama did outlaw torture by Executive Order 13491.
    .
    Obama’s National Security Strategy does commit to rule of law.–To that end, we strengthened our commitment against torture and have prohibited so-called enhanced interrogation techniques that were contrary to American values, while implementing stronger safe-guards for the humane treatment of detainees. Where prosecution is an option, we will bring terrorists to justice through both civilian and, when appropriate, reformed military commission proceedings that incorporate fundamental due process and other protections essential to the effective administration of justice…
    .
    Unsaid–where prosecution is not an option, for lack of evidence or other reasons, the US will kill the SOBs and anyone near them, and anyone where we thought the target was. (BTW, there was no evidence that OBL committed a crime.)
    .
    Obama doesn’t torture people, but he assassinates people, lots of people. So much for hope and change.

  5. Peterr says:

    On April 28, 2011, a week before the raid, Michael E. Leiter, the director of the National Counterterrorism Center, proposed at least telling Mr. Holder. “I think the A.G. should be here, just to make sure,” Mr. Leiter told Ms. DeRosa.
    .
    But [National Security Advisor] Mr. Donilon decided that there was no need for the attorney general to know.

    .
    I’ll bet Holder just *loved* having the DOJ cut out of the loop on this entirely.
    .
    If I’m the top law enforcement officer in the country (save POTUS) and my opinion is not deemed necessary, my letter of resignation would have been in Obama’s hand ten minutes after being read into the raid, and I’d have been on a plane home 30 minutes later. “Obviously, you don’t need me around here.” And 30 minutes after the raid was over, I’d make sure a copy of the letter went to the media. I wouldn’t say what the specific issue was, only that since the President had seen fit to exclude my thoughts from the discussion of some of the most pressing legal questions of his presidency, I was going home. When the media would come to ask for specifics, I’d tell them to ask the President.
    .
    Then again, maybe it *is* just me. After all, Holder stuck around for another three years before leaving the DOJ.
    .
    (putting on tinfoil)
    .
    I wonder what else those within and close to the White House thought the DOJ didn’t need to know about. Clearly Tim Geithner felt DOJ had no need to look at anything going on at the banks . . .

    • emptywheel says:

      I would have done that as Holder when Obama let others override my decision about prosecuting 9/11 defendants in NYC.

      Which turned out to be an epically boneheaded decision on Obama’s part, too.

      • Peterr says:

        At least in that case, Holder was allowed to state his case before being overruled. Here, his participation in the discussion was not only not asked for, but specifically excluded.

        • orionATL says:

          but then, holder and his wife were reported to have dinner with prez and first lady on a frequent basis (+- every couple of weeks). prez liked the attorney general’s sense of humor, so the gossip went.

          as slick as these presidential bastards are, there probaby was some very good reason to go around holder (formally) – like, say, the-computer-clerk-made -the-mistake gambit.

  6. Don Bacon says:

    “Justice” is a farce. It’s whatever serves the empire, with the lawyers’ blessing, and if some lawyers aren’t invited, there are others to do the deed. There is no shortage of lawyers.

  7. Trevanion says:

    I’m so old I’m no longer sure what bothers me more: the lawlessness of going around the AG and OLC or the sound of crickets chirping in response to Savage’s article.

  8. orionATL says:

    personally, i don’t know why the obama insiders group went to so much trouble to select and deselect govt lawyers. all they had to do to get the opinion they wanted was to call on the services of the premier legal sophist of out time – antonin scalia.

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