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March 10, 2013 1:01 PM Blockbuster Reporting on Drones

By Ryan Cooper

To ease off my Times bashing for a moment, they have an excellent, deeply reported piece today on the Obama administration’s drone policy. It’s the most comprehensive account yet of the internal decision-making process that led to the killing of three American citizens, two by accident. I was particularly fascinated by this account:

David Barron and Martin Lederman had a problem. As lawyers in the Justice Department’s Office of Legal Counsel, it had fallen to them to declare whether deliberately killing Mr. Awlaki, despite his citizenship, would be lawful, assuming it was not feasible to capture him. The question raised a complex tangle of potential obstacles under both international and domestic law, and Mr. Awlaki might be located at any moment.
According to officials familiar with the deliberations, the lawyers threw themselves into the project and swiftly completed a short memorandum. It preliminarily concluded, based on the evidence available at the time, that Mr. Awlaki was a lawful target because he was participating in the war with Al Qaeda and also because he was a specific threat to the country. The overlapping reasoning justified a strike either by the Pentagon, which generally operated within the Congressional authorization to use military force against Al Qaeda, or by the C.I.A., a civilian agency which generally operated within a “national self-defense” framework deriving from a president’s security powers…
But as months passed, Mr. Barron and Mr. Lederman grew uneasy. They told colleagues there were issues they had not adequately addressed, particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas. In light of the gravity of the question and with more time, they began drafting a second, more comprehensive memo, expanding and refining their legal analysis and, in an unusual step, researching and citing dense thickets of intelligence reports supporting the premise that Mr. Awlaki was plotting attacks.

Marty Lederman was actually one of the first bloggers I ever read regularly, when he was posting at Balkinization lambasting the Bush administration for legal overreach.

In any case, the whole piece is worth a read. And in what I’m sure is unrelated news, the Air Force has stopped reporting data on drone strikes in Afghanistan.

UPDATE: For a different, extremely skeptical take on this piece, see Marcy Wheeler.

Ryan Cooper is a National Correspondent at The Week, and a former web editor of the Washington Monthly. Find him on Twitter: @ryanlcooper

Comments

  • FlipYrWhig on March 10, 2013 2:13 PM:

    It seems like there's a plausible case that the president does have the power and the authority to do things like this. That doesn't mean that they're a smart idea, or that laws can't be remade to roll back that power. I think people invested in this set of issues should be moving on to talk about what to do to advance their objectives, rather than getting into a complex political-philosophical meta-debate about how the president doesn't _really_ have, or ought not to have, these powers. For instance, why not push to rescind the AUMF?

  • jjm on March 10, 2013 2:13 PM:

    I thought the NYT piece was quite good.

    In the long run, the deep agitation over Obama's use of drones boils down to those who, even 'progressives', who fear putting such awesome power in HIS particular hands, despite his demonstrated caution, intellect and restraint. I don't recall one word against the Bush/Cheney regime's use of drones, despite their demonstrated lack of cautious, lack of deep intellect, and lack of self-restraint.

    A black man with his finger on the trigger -- what Americans have been afraid of since the beginning ... disgusting.

  • FlipYrWhig on March 10, 2013 2:21 PM:

    @jjm : I really don't think that's it. It's legitimate to not want a situation in which the president can target people for assassination without, at a minimum, some kind of skeptical, adversarial review of that kind of decision. What seems to be the case, though, is that presidents will assert that power, and exercise it, until it is specifically taken away. I mean, I'm pretty confident that money doesn't equal speech and thus that Citizens United was a wrongheaded decision, but campaign finance law is going to be all jacked up despite what I believe in until someone important comes up with a way to fix it. This is a parallel case.

  • marc sobel on March 10, 2013 2:41 PM:

    You have a typo in the second sentence. You "infernal" is spelled with an "f"

  • emjayay on March 10, 2013 3:10 PM:

    First I suppose it's better to be talking about this stuff than say having the CIA just secretly murder democratically elected leaders of countries we are at peace with like we did in the good old days.

    Second say it's WWII and some US citizen put on a Nazi uniform and joined their leadership. What would be OK to do then? Just about anything, that's what. Things aren't so simple today obviously and I'm confused and ambivalent myself. Short of a pacifist position probably what works in the big picture is maybe what's right.

  • Below the Beltway on March 11, 2013 8:56 AM:

    We make excuses for executing American citizens without a trial, or even charges. We make excuses for drone-bombing funerals and weddings. We make excuses for using signature strikes to kill people on the basis of generic behavior when we have no idea of their identity. Would we accept those excuses if another country tried to use them for the same behavior? Say Russia using them on Chechnyans, or China using them on Tibetans? Or do we apply a different standard to our own actions?

  • LAC on March 11, 2013 10:43 AM:

    jjim, that is exactly it. Like the teabaggers, I wonder where these "progressives" were in the bush years. And why this irrational level of emotion about a person who aligned himself with a terrorist group? It wasn't like he was walking the streets of Paris with a "I hate America" sign and hurt the presidents feelings. .