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The Washington Post Editorial Board Reads the Lawfare Blog

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By Kenneth Anderson

Jack Goldsmith and Benjamin Wittes have been arguing for several days now at the Lawfare blog that the Obama administration should release either the Justice Department opinion approving the Al-Awlaki attack, suitably redacted, or some statement that puts out in some detail it’s legal reasoning. The Washington Post has evidently read those posts closely, as it comes out today with a strong editorial endorsing the same thing. I broadly agree with these arguments.

I am equally concerned, however, with something that both Goldsmith and Wittes raised in their posts, viz., the increasing absurdity of a system of “covert” action in which, as the ACLU’s Benjamin Wizner put it in an amusing exchange with the White House counterterrorism adviser John Brennan at Harvard Law School a few weeks ago, they must be not be acknowledged though we can read about them in the newspaper. The problem is that this eventually goes from amusingly absurd to de-legitimating. It is amusing so long as the operations are successful — the Awlaki killing, the Bin Laden raid — and the (still illegal) leaks to the press are all about taking credit.

It turns into something a lot less fun when something goes bad, as something inevitably will in operations of this kind, and these same extra-legal channels of wink-wink-nod-nod are used as parties try to deflect blame, put it on someone else, utilize press leaks to shift responsibility: this is not accountability, finally, it’s a natural but deeply flawed way of avoiding true accountability. It involves informal mechanisms for taking credit when something good happens and offloading it on someone else when something bad happens. It’s a bad, but unfortunately tempting, idea when the news is good and when the news is bad.

At the heart of the problem is that we have different levels of secrecy, and therefore different levels of accountability and transparency, that we want to attach to different kinds of operations. Drone programs and targeted killing are not secret anymore, and need to be discussed as programs — even when particular operations might be secret, or might be secret in advance and can be discussed afterward in general terms, or might be so secret that they must remain so afterward for some perhaps lengthy period of time. The general legal rationales behind such programs ought to be public and discussed — granting something that hasn’t quite received enough attention, viz., that the legal judgments made by OLC will often turn on facts and circumstances, including crucial facts about rules of engagement, technologies that assist in gathering information, on-the-ground intelligence networks, that must not be revealed, even as to their existence.

For that reason, I think a serious discussion should be had as to whether to release the OLC opinion, redacted, or the preparation of a separate document that addresses the general legal theories as such. (I also agree with Jack Goldsmith, btw, that the real issues are domestic law authorities; I don’t think there’s that much more to say about the international law behind this. One either buys the basic approach as a plausible general line in international law or one doesn’t. One’s position in this turns on deep priors about the nature and sources of international law.)

I realize that only a person who has never worked in government could say this, but it does seem to me that reform to the existing system of defining covert activities, and the attendant reporting consequences, would be a very good idea. Before something goes horribly wrong, which will eventually be the case, and fundamental national security programs and their institutions risk deep damage as everyone scrambles to use these flawed and not very legitimate mechanisms to shift blame. Such institutional matters as the salutary cooperation and merger of operations between CIA and JSOC, civilian and military integration in intel activities, etc., could easily be at risk.

I’ve sometimes talked about a new category of “deniable” operations and not only “covert” ones. I’ve had some private questions about what exactly that would mean. I’m not sure; I’m still thinking about it and talking with people. I am not prepared to even begin to propose something. But we have to consider the functional range of activities that today fall loosely under the category of “covert” and ask whether it is time to break them into distinct legal, policy, and strategic parts, attach different definitions and different reporting and oversight obligations to them, including distinct acknowledgments of what can and cannot be said to the public. It seems hopeless to talk about amending Title 50 as such to do this — much less attack what is the root of the problem, secrecy, both over-classification and resulting under-compliance — but there are surely important things that could be done within the executive branch alone, without the need of action by Congress. No doubt important revisions and reforms are happening in secret — but part of the point is to say, one of the purposes is to increase public legitimacy over the long term for these vital national security programs and operations, so it doesn’t help if the fundamentals of legal authority and accountability in these activities are not put out to the public.

About the Author

Kenneth Anderson is a professor of law. He teaches and writes in the areas of business and finance, both domestic and international; law and economics; and public international law, international organizations, human rights, and the laws of war. His current research agenda for 2010-11 focuses on targeted killing and drone warfare in armed conflict, and robotics and the law generally; global governance, global civil society and legitimacy; financial regulation reform (with Steven L. Schwarcz); and concept of proportionality in the law of war, the philosophy of value, and cost-benefit analysis. Professor Anderson’s book on UN-US relations, Returning to Earth: What Multilateral Engagement Means in UN-US Relations, will appear in 2011 from The Hoover Institution Press; and together with Duke University’s Steven L. Schwarcz, he is at work on “Reforming Financial Regulation” for Oxford University Press. Editorial board member of the Journal of Terrorism and Political Violence and political sciences advisory editor to the Revista de Libros (Madrid), Professor Anderson actively blogs at the Volokh Conspiracy and the international law blog Opinio Juris. He is a contributor to the Times Literary Supplement, Revista de Libros, Wall Street Journal, Weekly Standard, New York Times Magazine, Financial Times, Policy Review, and other general interest reviews. Professor Anderson will be a visiting professor at the University of Virginia School of Law in Spring 2011.

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