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.