DEFENSE FEBRUARY 6, 2013
“It’s hard to believe that it was produced in a democracy built on a system of checks and balances,” said Hina Shamsi of the ACLU, in response to Monday’s leaked 16-page Justice Department “White Paper” on the legal basis for a lethal operation against a U.S. citizen al Qaeda leader. It is Shamsi’s job to declare on a regular basis that the executive branch is acting unlawfully and that our constitutional system is under threat. But her predictable reaction to the White Paper, and the White Paper itself, reveal some of the misunderstandings and pathologies that still plague the conduct of the global “war on terror,” now in its twelfth year.
There is little of substance that is new in the White Paper. Thanks in part to lawsuits and publicity campaigns brought by the ACLU, and to disclosures and leaks sparked part by these actions, we have learned a lot in recent years about the Obama administration’s targeted killing program, including its legal basis. Many elements of the administration’s legal thinking on targeted killing, including of American citizens, have been laid out as well in a series of remarkable speeches by senior administration officials.
Much is being made of the White Paper’s expansive conception of the “imminent threat,” which doesn’t require as a predicate for targeted killing evidence of a specific attack in the immediate future. Shamsi’s ACLU colleague, Jameel Jaffer, says the White Paper “redefines the word imminence in a way that deprives the word of its ordinary meaning.” Perhaps. But this is not news. In an address at Harvard in 2011, the president’s counterterrorism czar, John Brennan, argued that “a more flexible understanding of ‘imminence’ may be appropriate when dealing with terrorist groups,” and maintained that “the traditional conception of what constitutes an 'imminent' attack should be broadened in light of the modern-day capabilities, techniques, and technological innovations of terrorist organizations.”
Nor is the White Paper a repudiation of democratic principles or our constitutional checks and balances. Shamsi complains that the president claims an authority to kill American citizens “without legal involvement.” What she fails to mention is that the ACLU brought a lawsuit against the administration concerning the killing of Anwar al-Awlaki, an American citizen and member of al Qaeda in the Arabian Penninsula who was an operational leader who planned attacks on the United States from Yemen, including the failed 2009 “underwear bomber” attack. The court dismissed the case based in part on “the impropriety of judicial review.” The court added that the Constitution places “responsibility for the military decisions at issue in this case 'in the hands of those who are best positioned and most politically accountable for making them'”—Congress and the president. Judicial review before killing an American citizen might sound like a good idea in the abstract. But at present there is simply no constitutional or statutory mechanism for judicial review that the president could have deployed before killing al-Awlaki. Congress might be able to create a system of secret judicial review in this context, though it has shown little interest in doing so and its authority to do so is far from clear.
In the meantime, the president faced a threat and had the responsibility to act. Our constitutional democracy does not require the president to remain passive in the face of threats such as al-Awlaki. To the contrary, he has a duty to meet this threat, regardless of the citizenship of its author. Consistent with the legal judgment of two presidential administrations and based on principles articulated by federal courts reviewing detentions in Guantanamo, al- Awlaki also falls within the September 2001 congressional authorization of presidential force against al Qaeda.
We can be confident that neither the president nor his national security team cherished the act of authorizing the killing of an American citizen. But what were their options? Extradition and other “police” options were not available, since Yemen’s government lacked the capacity to find and capture al-Awlaki. The United States might have invaded Yemen with ground troops, though this course of action would have raised many more serious legal and political issues, endangered U.S. troops and others, and almost certainly resulted in the death of al-Awlaki and many others. And so the president decided to kill al-Awlaki with the precise means of a hellfire missile launched from an unmanned aerial vehicle.
This is not a step that the president took without fully considering its legality. The White Paper is reportedly based on a more detailed and still-secret memorandum by the Justice Department’s Office of Legal Counsel. But even the abbreviated analysis in the White Paper shows how seriously the administration took the legal basis for, and legal limits on, its action. Shamsi says that the White Paper’s “summarizes in cold legal terms a stunning overreach of executive authority.” There is indeed something creepy about writing down the legal basis for killing an American citizen. But the president must dirty his hands every day in keeping the country safe; the nation expects him to do this and will punish him if he does not. His lawyers have a duty to analyze many unfortunately necessary options and actions for legal authority and limits, no matter how creepy the task or the results.
That's not to say that the administration has acted flawlessly. The White Paper does reveal problems in the administration’s political and legal strategy for conducting drone strikes, especially strikes against American citizens. The main problem is excessive secrecy. The unclassified (and undated and unauthored) White Paper was, after much resistance, disclosed to the intelligence committees in Congress last summer. There is no good reason why it could not have been disclosed to the American people as well. The administration has claimed that revealing more about the legal basis for its drone actions than it has done in speeches and leaks would compromise national security. But the White Paper contains many more legal details and is not marked as classified, which means that its disclosure was deemed not to harm national security.
And the legal details matter. To say that the administration has taken its legal duties seriously is not to say that its legal interpretations are beyond question. The truth is that the administration’s actions in this form of warfare raise difficult questions of constitutional and international law. Especially since courts will likely not have a role in reviewing these actions, it is vital that the legal basis (and to the extent possible, factual basis) for our targeted killing policy be publicly debated so that Congress and the American people can decide in an informed way if they approve or if they wanted a deeper congressional role.
Indeed, there are signs of growing interest by Congress about the legal basis, and limits, for targeted killing. John Brennan’s Thursday confirmation hearing to be the director of the Central Intelligence Agency is an ideal opportunity for Congress to learn more, and to take more responsibility for the targeted killing program that portends to be a major counterterrorism tool for the foreseeable future.
Jack Goldsmith, a former assistant attorney general in the George W. Bush administration, is a professor at Harvard Law School and a member of the Hoover Institution task force on national security and law.