Here We Go Again - The Obama Administration and Bad Legal Advice

I have been absent for a long time from this blog, but the release of a DOJ White Paper on targeted assassination, including the killing of U.S. citizens, noted yesterday by John, brought me out of hiatus. (The disclosure is believed to have been timed to support the confirmation of John Brennan to the post of CIA director.)  I have been following this issue through articles in the New York Times and commentary by bloggers including Conor Friedersdorf and Glenn Greenwald, and have been slowly developing a sinking feeling that the Justice Department lawyers in the Obama administration have been playing fast and loose with the law, just as lawyers in the Bush DOJ did, in order to provide advice that the drone campaign in Pakistan, Yemen, and elsewhere is lawful. Since I was a harsh critic of John Yoo and Jay Bybee in the Bush Office of Legal Counsel, considerations of fairness and impartiality seem to require me to take a public position on the conduct of the lawyers in the Obama administration.

As always, complicating the ethical analysis is the scope and complexity of law bearing on the President's actions. The White Paper ranges over international law; international humanitarian law (IHL) or the law of warfare (see, e.g., the discussion of the Tadic case establishing standards for the existence of a non-international armed conflict, discussed by Kevin Jon Heller and see a recent paper by my colleague Jens Ohlin on the equirement to capture the target of the strike if feasible); separation of powers; constitutional criminal procedure; and domestic criminal law (including the public authority justification for killing). As a matter of legal ethics, my position has always been that a lawyer providing legal advice regarding prospective conduct, as distinct from a lawyer defending a client in litigation regarding past conduct, is obligated to interpret the governing law in good faith and advise her client, including the President, according to the lawyer's reasonable (i.e. an objective standard) view of what the law requires.  In many cases this may be different from a position a lawyer could take in litigation, consistent with Rule 3.1 and Fed. R. Civ. P. 11.  Thus, the ethical analysis of the lawyers' conduct in preparing the memo and the underlying OLC opinion would depend on whether the advice in the memo is an objectively reasonable interpretation of the governing law.

Apart from that, however, there is a jurisprudential issue lurking in the White Paper that troubles me quite a bit.  As commentators have already pointed out, the "who decides?" question may be more important than the substantive legal standard set out in the analysis.  On p. 6 the White Paper states that it would be lawful to kill a U.S. citizen located outside the U.S. and "an operational leader continually planning attacks against U.S. persons and interests" where, inter alia, "an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack" (emphasis added).  We can -- and should -- argue round and round about the imminence requirement, what it means to be involved in planning attacks, whether there is a non-international armed conflict in Yemen, etc., but these issues are separate from the institutional question of who gets to make the judgment call.  Glenn Greenwald argues that the White Paper equates guilt with an accusation, but let's assume the high-level official genuinely attempts to ascertain whether the target of the strike is guilty.  There are still problems with this:

1.  All decision-makers are subject to blind spots, the effects of biases and heuristics, and other predictable patterns of erroneous decision-making.  Groups have problems, too, including pluralistic ignorance and "groupthink," so the problem may not be solved merely by having a committee of high-level officials make the call.  As lawyers, one of the commitments of our profession is to the value of procedures, due process, checks and balances, transparency, and accountability. 

2.  The moral value of the rule of law is related to the disvalue of unchecked individual, discretionary decision-making.  There are better and worse ways of making decisions as a normative matter, apart from the empirical considerations in #1.  As David Luban has argued, the rule of law manifests an attitude of respect by the governors toward the governed.  A regime of unchecked discretion -- as the White Paper appears to endorse here -- is antithetical to the values served by the rule of law, which are primarily the equality and dignity of citizens.  It sounds bizarre to say that the problem with drone strikes is that Anwar al-Awlaki and his son should had an opportunity to vote before they were killed, but Awlaki is really just a stand-in for any of us.  Don't we think this kind of awesome power should be held closely in check?  If we do, what is the reason?  The Luban version of the rule-of-law argument is that the government must respect our human dignity by allowing citizens to participate in government decision-making about such important interests. 

3.  The discussion of legal authority in the White Paper is less cavalier than in the Bush administration torture memos, but notice a gap:  There is no authority cited for the proposition that decisions related to the killing of U.S. citizens may be made by a high-level government official, without any other process.  The White Paper cites the Hamdi opinion (and Mathews v. Eldridge) on the process that is due before a citizen is deprived of life, but the only citation on the "who decides?" question is to dicta in Hamdi concerning the Court's traditional deference to military authorities (see p. 7).  The permissibility of a high-level official making this decision seems to have been slipped into the legal analysis without adequate legal support.

I'm not really an expert on IHL and the law of war, and I look forward to a robust debate among those scholars.  What I do know, however, is that secret decision-making processes are contrary to the values to which lawyers are dedicated.  Maybe I'm insufficiently hard-nosed or realistic, and maybe some dodgy covert operations are a necessary aspect of self-defense.  I'm not sure, however, that it is possible to square the circle and have lawful covert activities where the imprimatur of lawfulness is necessarily granted by individuals acting in secret. 

Comments

[Richard W. Painter]

I agree. Whether or not the legal conclusions in these memos are correct, the issues need to be discussed in public, and furthermore with an eye not just to what the law will allow but also what is the right thing to do.

[Milan Markovic]

Brad,

Thank you for sharing your thoughts on this.

I do not have a problem with the legal analysis found in the White Paper, although I certainly hope that the OLC memo is released sooner rather than later. It is extremely unfortunate that the American public (to say nothing of allies abroad) have to try to gleam the legal rationale for the targeted killing program from speeches, white papers, and news stories.

On the question of who decides, if you accept that the U.S. is in a global non-international armed conflict, then IHL applies. This is a controversial position but for better or worse seems to have been accepted by some U.S. courts. To the credit of the White Paper's authors, they recognize the controversy and grapple with the relevant standard from Tadic.

IHL does not require due process for targeting decisions although it does require distinction between combatants and non-combatants. So on the question of "who decides," isn't the answer pretty clearly in the U.S. system the commander-in-chief? The "high-level official" formulation strikes me as sloppy, but from what I have read about the program, Obama is consulted on every target. Obviously the legal issues get more complicated when the target is an American citizen (hence the white paper's discussion of imminence and alike), although IHL does not recognize a difference between citizens who join enemy forces and non-citizens.

My reading of the White Paper is that it also took some of the issues raised by Brad concerning unchecked executive power very seriously, even if the balancing test it advocates might be unsatisfactory.

[Patrick S. O'Donnell]

I’ve put together a document of the various leading analyses and comments to date “out there” on the DoJ White Paper should anyone want a copy. It’s 32 pages, with hyperlinks (and I think I captured most of the embedded hyperlinks as well) to the original sites from which the material was found. (I even corrected some minor typos!)

[Patrick S. O'Donnell]

Milan, Any thoughts on this from Michael Dorf (who also raises some interesting issues about 'standing' with regard to challenging the kill-list)?:

The ‘kill list’ is back in the news, with the publication of a white paper that sets out the core of the Obama Administration’s legal rationale for killing American citizens suspected of terrorism. When word of the underlying memo first leaked in the fall of 2011, I noted my puzzlement at how it appeared to blend analysis based on both a war paradigm and a domestic law enforcement paradigm, but I have since come to think that this approach was more or less required by Hamdi v. Rumsfeld, which applied a due process paradigm developed in the context of civilian cases to the detention of Americans captured in war. The white paper confirms the Administration’s reliance on Hamdi.