The OLC “Kill” Memo: Is there really anything to be alarmed about?

OLC “torture” memos, because he felt making high value targets uncomfortable to save American lives was important. President Obama has his “kill” memo, because he feels it legally messy to capture and interrogate over simply killing terrorists; and he includes American citizens as possible HVTs who can be targeted for extermination without due process….to make America safe.

In wake of John Brennan’s confirmation hearing today for the position of CIA Director (with questions to answer for, from the left and the right), and amidst pressure from those on the right AND the left, President Obama has agreed to sharing the OLC “kill” memo with congressional intelligence committees.

WaPo:

Senate committee Chairman Dianne Feinstein (D-Calif.) said she was “pleased” with the decision. “It is critical for the committee’s oversight function to fully understand the legal basis for all intelligence and counterterrorism operations,” Feinstein said in a statement.

She said the committee expected to receive the document Thursday morning.

The memo, written by the Justice Department’s Office of Legal Counsel, provided the administration’s legal basis for a 2011 CIA drone attack in Yemen that killed U.S.-born cleric Anwar al-Awlaki. Obama described Awlaki as the chief of “external operations” for al-Qaeda in the Arabian Peninsula, the al-Qaeda affiliate held responsible for several unsuccessful attacks on the United States.

The administration had described the memo as an internal “work product” that does not have to be shared with Congress. Lawmakers accused the administration of a lack of transparency and likened its handling of the issue to the refusal of the George W. Bush administration to provide access to legal memos justifying the use of harsh interrogation methods against terrorism suspects. Obama publicly released those memos shortly after taking office in 2009.

Last summer, the Justice Department provided members of the intelligence and Judiciary committees with a summary of the legal opinion on U.S. citizen killings. But key lawmakers said it was not enough.

While specific lethal operations “need to be confidential,” Sen. Ron Wyden (D-Ore.) said Wednesday, “laws in our country and their interpretation are not supposed to be confidential. . . . The idea of keeping the intelligence committee, in particular, out of even any real insight into the legal analysis, it’s a mockery . . . of the oversight process.”

Wyden, a committee member who spoke to reporters at Senate Democrats’ annual retreat in Annapolis, stopped short of saying he planned to hold up Brennan’s confirmation. But, he said, “you’ll be certain I am going to bring it up” at the hearing and “I am going to pull out all the stops” to obtain the document.

While it is true that there has been hypocrisy on the left in regards to this and other similar policy-making decisions where President Obama has embraced some of the very same policies and positions (or similar ones) that he and his fellow Democrats attacked his predecessor over (against it before they were for it), it is also true that there has been consistency as well among those who are ideologically pure; and blind to the “D” or the scarlet letter “R” next to the name. This is true of conservatives during the Bush years who did criticize the Bush administration, fearing such things as the Patriot Act and NSA wiretapping. In this they were aligned with groups like the ACLU. And now it is the ACLU who is aligned with those who fear certain actions taken by the Obama administration. Strange bedfellows?

How many of us, left and right, criticize the president with the “D” or the “R” out of politics over patriotism? How many of us conservatives are inconsistent in our arguments, criticizing President Obama because he wears the “D” next to his name? We certainly recognized the “whatever it is, we’re against it” behavior during the 8 years of the previous administration.

Politicians like Ron Paul and Dennis Kucinich seem consistent in their non-interventionist-isolationist/anti-war criticism of President Bush and President Obama. (When you are so far to the left and so far to the right, I suppose the twain must meet).

It disheartens me when I see my side of the political aisle behave with the same kind of venemous political partisanship and vitriolic rancor, the same level of hyperbole and hysteria that I hated seeing from the liberal fringe against President Bush (anything but a “far right” conservative!). It was ugly from the left and it is unbecoming of the right. Hypocritical of us, if we criticize Obama when we gave Bush a pass.

Today, some on the right are launching into the realm of conspiratorial fears, that because you’re a Tea Party member or belong to the NRA, you’re going to find a Drone coming after you. I suppose being paranoid doesn’t necessary rule out that someone is out to get you. But, really?!

If I ever find myself on the same page as groups like the ACLU, I’d think that should be a red flag right there that maybe something in my political thinking might not be quite right, and I should rethink.

Max Boot has a piece worth reading(Hat tip: Mata):

Pete Wehner makes a fair point in dinging President Obama for hypocrisy because Obama once expressed outrage over the Bush administration’s use of torture (euphemistically called “enhanced interrogation techniques”) while now defending the legality of his own policy of ordering the targeted killing of al-Qaeda members even if they’re U.S. citizens. There is no judicial review in either policy–and the latter results in death rather than discomfort.

But I’d much rather that the president be hypocritical than wrong on the issue of targeted killings. In this case I think he deserves applause for taking the right stance in spite of the criticism from some of his own supporters in the “human rights” lobby. (I use quote marks because groups like Amnesty International seldom if ever recognize that actions taken by Western states to defend themselves against terrorist attacks are a defense of the basic right to live without fear of assault.)

Drone strikes are by no means risk free, the biggest risk being that by killing innocent civilians they will cause a backlash and thereby create more enemies for the U.S. than they eliminate. There is no doubt that some of these strikes have killed the wrong people–as the New York Times account highlights in one incident in Yemen. There is also little doubt, moreover, that drone strikes are no substitute for a comprehensive counterinsurgency and state-building policy designed to permanently safeguard vulnerable countries such as Pakistan, Yemen, Somalia, Libya, and Mali from the incursions of radical jihadists. But drone strikes have been effective in disrupting al-Qaeda operations and they have been conducted with less collateral damage and more precision than in the past.

It is hard to assess what impact they have had on public opinion in countries such as Yemen and Pakistan, but there is at least as much evidence that these strikes are applauded by locals who are terrorized by al-Qaeda thugs as there is evidence that the strikes are reviled for killing fellow clansmen. As the Times notes: “Although most Yemenis are reluctant to admit it publicly, there does appear to be widespread support for the American drone strikes that hit substantial Qaeda figures like Mr. Shihri, a Saudi and the affiliate’s deputy leader, who died in January of wounds received in a drone strike late last year.”

Given the need to continue these drone strikes, it would be silly and self-destructive to grant certain al-Qaeda figures immunity just because they happen to have American citizenship. In past wars such as the U.S. Civil War and World War II the U.S. military never hesitated to kill or capture enemy combatants simply because they happened to hold American citizenship. Why should today be any different?

Obviously the U.S. government is not going to engage in targeted killings on our home soil, and there is no need to do so–al-Qaeda operatives in the U.S. can always be arrested. That’s not the case in Pakistan or Yemen, where the alternative is typically either to let them go or kill them in a drone strike. The Justice Department memo leaked to NBC News, which justifies such attacks, seems to me a model of careful legal reasoning which preserves the commander-in-chief’s authority to wage war on our enemies without trampling on civil liberties at home.

“This is a chilling document,” says an ACLU lawyer (predictably). No, it’s not. It’s an encouraging document. It shows that, however committed Obama may be to a policy of retrenchment abroad and to dangerous cuts in defense spending, he is still willing to doing what it takes to defend us from al-Qaeda and its ilk.

Peter Feaver:

The Obama Administration has embraced the Bush doctrine, or at least the preemption part of the Bush doctrine. According to news reports about the Justice Department’s memo on drone strikes, the Obama Administration bases its policy on an expansive interpretation of the laws of war, which allow countries to act to head off imminent attack. In particular, according to the reporter who broke the story, the Obama Administration bases its legal reasoning by interpreting “imminence” in a flexible way:

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and that “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”

This should sound familiar to anyone who has debated American foreign policy for the past decade, for precisely that sort of logic undergirded the Bush Administration’s preemption doctrine.

~~~

Of course, the Bush Administration was excoriated for framing the issue that way, and there arose a lively cottage industry devoted to attacking this aspect of the Bush doctrine. While Obama has tended to get away with things his predecessors could not, I suspect that even he will face some tough questioning now that the overlap with the controversial Bush doctrine is so unmistakable.

~~~

The memo reveals the Obama Administration wrestling with these problems and coming to conclusions strikingly similar to those of the Bush Administration. I wonder if Team Obama will be more successful than the Bush Administration was in arguing the merits and logic of the preemption doctrine.

Benjamin Wittes and Susan Hennessey at Lawfare Blog:

Okay, everyone, take a deep breath. Chill out. The DOJ’s “White Paper” on targeted killing is no big deal. Really.

You wouldn’t know this from reading the somewhat breathless press coverage of the document, much of which offers a reasonable reader some confusion as to what the White Paper actually is.

The more responsible reporters have been reasonably careful. Michael Isikoff’s original story for NBC News calls the document a “confidential Justice Department memo,” and a “confidential Justice Department ‘white paper.’” Isikoff goes one to say that, “Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel.” Isikoff then says, rather more tendentiously, that the document authorizes the killing of U.S. citizens who are top operational Al Qaeda figures “even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.” This latter point is, to put it mildly, a stretch.

Lawfare Blog has links to some worthwhile opinions regarding the DoJ “White Paper” and targeted drone killing of American citizens. Scroll through the posts.

Michael Gerson WaPo:

“If George W. Bush was whacking American citizens on the basis of secret legal memos,” writes Dick Polman, “Senate liberals would be conducting hearings.”

“If George Bush . . . had done this,” argues Joe Scarborough, “it would have been stopped.”

On the right, this argument is an accusation of hypocrisy. On the left, it is an expression of horror. In reality, it is an indication of continuity.

The Obama administration’s defense of drone strikes against al-Qaeda and associated groups — including U.S. citizens who are part of those groups — is based on a certain concept of self-defense in an age of terrorism. In this view, a threat does not become “imminent” when a terrorist boards a plane or straps on a bomb vest. It emerges when terrorists plot, train for and incite attacks. “The Constitution,” says Attorney General Eric Holder, “does not require the president to delay action until some theoretical end-stage of planning.” The recently leaked Justice Department memo argues similarly, “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

The same point was made by President Bush, who talked of remaining “on the offensive” in order to prevent attacks “before they arrive.” The National Security Strategy of 2006 put it this way: “If necessary, however, under long-standing principles of self-defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy’s attack. When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize.”

This argument was savaged as a dangerous innovation. It was nothing of the sort. Elihu Root, a senator and former secretary of state, said in 1914, “Every sovereign state [has the right] to protect itself by preventing a condition of affairs in which it will be too late to protect itself.” President Franklin Roosevelt made the case with typical vividness: “When you see a rattlesnake poised to strike, you do not wait until he has struck before you crush him.” At the height of the Cuban missile crisis, President John Kennedy argued that the nature of modern threats required preventive or anticipatory self-defense. “Neither the United States of America nor the world community of nations,” he said, “can tolerate deliberate deception and offensive threats on the part of any nation, large or small. We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril. Nuclear weapons are so destructive, and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.”

Drone strikes are an innovation in anticipatory self-defense, requiring careful oversight and a high threshold for action. They are also a technology that allows the most discriminate application of force in the history of warfare. That the use of drones protects U.S. troops from risk is a virtue. And the targeting of U.S. citizens who are fighting for the enemy is neither new nor forbidden by the laws of war. At least eight American volunteers for the Waffen SS were killed during World War II. Should their U.S. citizenship have earned them membership in a special, protected category of combatant?

This, of course, is the essence of the matter. If America is in an ongoing war against al-Qaeda and associated groups, then the rules of war apply, Yemen and the Afghanistan/Pakistan border are battlefields, and al-Qaeda operatives are lawful targets. This is the position taken by both the Bush and Obama administrations, consistent with America’s inherent right of self-defense and the 2001 Authorization for the Use of Military Force. If this war were a myth or a metaphor, then the pursuit of al-Qaeda would be a criminal matter, requiring extradition, arrests and due process.

Labeling Obama as “judge, jury and executioner” is his critics’ prerogative. But defending the country is not their responsibility. It is easy for those without executive authority to dismiss risks that are prospective. After a terrorist attack on America, the critics would likely be silent, hoping that no one recalled their complacency.