The CIA’s Four-Box of Death

Just to finish up with my continuing obsession with CIA General Counsel Stephen Preston’s speech at Harvard (don’t miss Josh Gerstein getting into the act with his fact check on the shooting of Osama bin Laden’s wife), I wanted to look at Preston’s “hypothetical case,” which I contend is meant to offer an explanation for how the CIA decided the Anwar al-Awlaki killing was legal.

I say this “hypothetical” is really about Awlaki because Preston focuses closely on Executive Order 12333’s prohibition on assassinations (never mind that OLC holds that this very EO can be pixie dusted without notice). Particularly given that Preston willingly talks about OBL’s killing–about the only other one that might be deemed an assassination–Preston’s attempts to rebut the claims that Awlaki was assassinated seem to arise from the same anxiousness Eric Holder exhibited on the same topic.

In other words, this is the CIA version of the speech Holder made.

Preston describes framing his analysis in terms of a four-box matrix.

I conceive of the task in terms of a very simple matrix. First is the issue of whether there is legal authority to act in the first place. Second, there is the issue of compliance with the law in carrying out the action. For each of these issues, we would look first, and foremost, to U.S. law. But we would also look to international law principles. So envision a four-box matrix with “U.S. Law” and “International Law” across the top, and “Authority to Act” and “Compliance in Execution” down the side. With a thorough legal review directed at each of the four boxes, we would make certain that all potentially relevant law is properly considered in a systematic and comprehensive fashion.

Curiously, Preston checks off the first box–authorization under US law before the op–by looking to Article II, not the AUMF Congress passed.

First, we would confirm that the contemplated activity is authorized by the President in the exercise of his powers under Article II of the U.S. Constitution, for example, the President’s responsibility as Chief Executive and Commander-in-Chief to protect the country from an imminent threat of violent attack. This would not be just a one-time check for legal authority at the outset. Our hypothetical program would be engineered so as to ensure that, through careful review and senior-level decision-making, each individual action is linked to the imminent threat justification.

A specific congressional authorization might also provide an independent basis for the use of force under U.S. law. [my emphasis]

That’s interesting for several reasons. First, it situates the authority to use lethal force not in the stated basis OLC is using–the one SCOTUS has affirmed (sort of), but in Article II. Just where John Yoo would look to situate it.

This also means that CIA maintains it has this authority–presuming a Presidential Finding–outside the context of a declared war.

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CIA General Counsel: The Osama bin Laden Killing Was Legal Because … “Triumph!”

In this post, I unpacked how the CIA General Counsel, Stephen Preston, managed to argue that “the CIA is an institution of laws and the rule of law is integral to Agency operations” even while admitting that courts had no review over many of its activities.

In the rest of his speech, Preston examines a “hypothetical case” that I will eventually argue is the Anwar al-Awlaki killing, and then a concrete example, the Osama bin Laden killing.

While the OBL case doesn’t elucidate much–anything–really about CIA’s legal process, I want to examine what Preston said because it’s so lame.

The OBL section takes up 794 words out of the 3,488 words total in the speech–over a fifth of the speech. Preston starts by claiming (in just over 50 words) he wants to examine the OBL example because it shows “that the rule of law reaches the most sensitive activities in which the Agency is engaged.”

In the next paragraph (68 words) Preston says he won’t dwell on the importance of the OBL op in terms of the larger fight against al Qaeda, because that’s already been covered; instead, he’ll focus on the law. Except,

But if you will indulge me, there are a few other aspects of this historic event that warrant mention up front.

Preston then spends three paragraphs describing what a “triumph” of intelligence (195 words), an example of momentous Presidential decision-making (70 words), and a “triumph” for our military (164 words) the op was. Preston spends well over half the section of the speech purporting to show that the rule of law reached the most sensitive CIA ops talking, instead, about what a triumph nailing OBL is.

That’s the kind of analysis he’s conducting to make sure all this is legal, I guess? Will it be a “triumph”?  Read more

CIA General Counsel: If the President Authorizes It, It’s Legal

I do hope the Harvard students who listened to this speech from CIA General Counsel Stephen Preston–in which he purported to explain what a law-abiding agency the CIA is and which appears to be the CIA’s effort to prove that the Anwar al-Awlaki killing was legal–are sophisticated enough to realize he, like all spooks, was peddling deceit. I’ll get to those details below.

But first I want to focus on how he bookends his claim that CIA’s “activities are subject to strict internal and external scrutiny.”

He starts by admitting that courts and citizens are not part of this “external scrutiny.”

It is true that a lot of what the CIA does is shielded from public view, and for good reason: much of what the CIA does is a secret! Secrecy is absolutely essential to a functioning intelligence service, and a functioning intelligence service is absolutely essential to national security, today no less than in the past. This is not lost on the federal judiciary. The courts have long recognized the state secrets privilege and have consistently upheld its proper invocation to protect intelligence sources and methods from disclosure. Moreover, federal judges have dismissed cases on justiciability or political question grounds, acknowledging that the courts are, at times, institutionally ill-equipped and constitutionally incapable of reviewing national security decisions committed to the President and the political branches.

Let’s unpack the logic of this: first, CIA operations are subject to strict “external scrutiny.” But because–“national security”–such external scrutiny is not possible.

Next, Preston claims that the courts have been in the business of consistently upholding the “proper invocation” of state secrets “to protect intelligence sources and methods.” Of course, just about every invocation of state secrets has been subsequently or contemporaneously shown to be an effort to protect–at best–misconduct and, in most cases, illegal activities: things like kidnapping, illegal wiretapping, and torture. So when he describes this “proper invocation” of states secrets, he is effectively saying that when lawsuits threatened to expose CIA’s law-breaking, courts have willingly dismissed those cases in the name of sources and methods.

And even before it gets to that stage, courts will bow to the Executive Branch’s claim that only Congress and the Executive can decide what forms of law-breaking by the CIA will be tolerated; courts are “ill-equipped” to judge the legality of illegal actions if those illegal actions are committed by the CIA.

So to prove that CIA’s ops are subject to “external scrutiny,” Preston starts by admitting that two of the most important agents of external scrutiny–citizens and courts–don’t actually exercise any scrutiny, particularly in cases where the government is willing to invoke state secrets to shield illegal activities.

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