These are not operational actions being concealed, but legal conclusions that bind the Executive Branch, which is why Johnsen and others described it as “secret law” and condemned it as so un-democratic. It basically means citizens cannot even know the laws that prevail in the country. Now we have the Obama DOJ refusing to release the Awlaki OLC memo — which purported to authorize the President to assassinate a U.S. citizen without due process — and is also concealing OLC memos purporting to describe the legal limits of its surveillance powers, which it also refuses to disclose even in the face of lawsuits. May we say that this conduct “threatens the effective functioning of American democracy”? 

One part of Savage’s article that is receiving much attention is his revelation that the Awlaki memo “was principally drafted by David Barron and Martin Lederman, who were both lawyers in the Office of Legal Counsel at the time.”  Lederman became known to many people during the Bush years when he used his blog to relentlessly attack the legal arguments underpinning the Bush/Cheney effort to expand executive power in the name of the War on Terror.  Judging by numerous emails and the like, many people find it surprising that this very same Marty Lederman, having been appointed to the OLC by a Democratic President, would now be the person supplying the legal justification for one of the most radical War on Terror powers of all: the ability to assassinate U.S. citizens with no due process.

For reasons I’ll discuss in a minute, I don’t find this surprising at all; after all, Harold Koh was long one of the leading advocates for a narrow interpretation of the President’s war powers under the War Powers Resolution, only to become the architect — once appointed to the State Department — of the ludicrous claims offered to justify President Obama’s fighting the war in Libya even in the face of a Congressional vote refusing to authorize it.  That’s just how Washington functions (during the Clinton years, John Yoo actually objected that Clinton had “exercised the powers of the imperial presidency to the utmost” and had “accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law”; once appointed by Bush, Yoo helped codify the most sweeping presidential powers imaginable).  People who aren’t willing to adhere to that dynamic rarely end up in positions of power there, and if they refuse, never will again.

I do want to focus on one aspect of what Lederman apparently wrote in justifying the Awlaki killing. What led him to conclude that the President had this power despite all the above-referenced legal and constitutional impediments? According to Savage, it was this: “the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict.” So the AUMF allowed the President to designate Awlaki an “enemy combatant” without a shred of due process, and then to act against him using the powers of war, because we are at war with an entity for which Awlaki had become a combatant.

There are many problems with that reasoning, but one in particular that deserves attention now is this: that was exactly the theory repeatedly offered by the Bush DOJ for far less draconian acts than assassinating a U.S. citizen, and it was one that the very same Marty Lederman categorically rejected.  As I’ve noted many times, one of the most controversial Bush/Cheney acts was its claimed power to detain U.S. citizen Jose Padilla without charges or due process — not to kill him, but merely detain him — on the theory that the AUMF authorized the President to designate him as an “enemy combatant” and treat him accordingly.  The Marty Lederman of the Bush years was aghast at the very idea, writing on September 9, 2005:

To the extent actual legislative intent matters, I find it very difficult to believe that Congress actually “intended,” through the AUMF, to authorize the indefinite detention of American citizens captured in the U.S. under circumstances such as those in the Padilla case: Would Congress truly have intended to supersede the ordinary civil justice system for U.S. citizens who are detained here at O’Hare Airport and suspected of conspiring to violate U.S. criminal laws, so as to authorize their indefinite detention — that is, detention until the war against Al Qaeda ends — without trial?

So in the Bush years, Lederman simply could not fathom that Congress intended the AUMF to allow the mere detention-without-due-process of an American citizen, but when working for Obama, that very same AUMF allows the assassination of citizens without due process. There is one obvious difference between Padilla and Awlaki: Padilla was captured on U.S. soil, while Awlaki was in Yemen. That may matter when debating the moral and ethical justifications of what was done to Awlaki, but it’s totally irrelevant to the statutory question concerning what the AUMF permits.

If — as Lederman now argues — the AUMF allows President Obama in his unilateral discretion to designate a U.S. citizen as an enemy combatant and kill him without due process, then surely it allowed President Bush to designate Padilla as an enemy combatant and treat him accordingly.  That Padilla was already captured on U.S. soil may make a difference politically or morally, but it makes zero difference constitutionally or statutorily: the AUMF doesn’t even hint at any distinctions between enemy combatants inside the U.S. or outside, and a U.S. citizen doesn’t lose his Fourth and Fifth Amendment rights against the U.S. Government when leaving the country. Even leaving aside the extremely dubious claim that Awlaki could not have been captured, and further leaving aside that no efforts were made to apprehend him (or even indict him so that he could contest the charges), this much is plainly true: to have argued in the Bush years that the AUMF does not allow the President to detain U.S. citizens without due process, but argue now in the Obama years that it empowers the President to kill them without due process, requires some significant levels of intellectual flexibility, to put that as generously as possible.

Detaining U.S. citizens without charges wasn’t the only power the Bush DOJ argued was conferred by the AUMF.  Bush lawyers also cited that statute to argue that it had the power to eavesdrop on the calls of U.S. citizens without warrants provided that one of the parties to the call was deemed to be a member or supporter of Al Qaeda.  In an Open Letter opposing this theory which he signed and repeatedly promoted, Lederman found the idea that the AUMF would allow warrantless eaveasdropping in such circumstances to be baseless, writing that “the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime.”

Lederman’s eavesdropping argument was based on the existence of FISA’s warrant requirements, which he contended were not explicitly overriden by the AUMF and were thus still valid.  But there is also an Executive Order prohibiting presidential assassinations, as well as long-standing laws of war banning assassinations (see Section IX), which the AUMF did not repeal.  Moreover, Lederman argued that Bush’s warrantless eavesdropping program would be illegal “even in the absence of FISA, because of the Fourth Amendment”; surely that’s true of presidential assassinations and the Fifth Amendment (which bars the deprivation of life without due process) as well as the Fourth (which prohibits the seizure of persons without warrants).

As the Bush years proved (and as anyone with any experience with lawsuits knows), lawyers can always find arguments to justify whatever they do.  But I think any minimally rational person can immediately detect the extreme levels of sophistry at work here: according to Marty Lederman, it was outrageous to suggest in the Bush years that the AUMF could allow mere presidential detention or even eavesdropping targeted at American citizens accused of being involved with Al Qaeda, but during the Obama years, that same statute justifies presidential assassinations (and note that Padilla, whose treatment remains a symbol of Bush/Cheney radicalism, ultimately received a trial and at least the trappings of due process, whereas Anwar Awlaki did not and never will).

What all of this underscores most is the ongoing danger of having these vital legal and Constitutional issues resolved by the President’s own appointees within the Executive Branch, rather than by independent courts.  I thought this lesson was learned during the Bush years: Presidents can always find someone among their political appointees at DOJ to provide the legal stamp of approval for whatever they want to do.  Bush officials, of course, infamously claimed that everything Bush did in the areas of detention, surveillance, interrogation and war were legal because DOJ lawyers issued memos saying they were legal; about that theory, Digby wrote: “If it is the case that the president can designate an Office of Legal Counsel functionary to immunize government officials and employees against criminal behavior, then it is true, to all intents and purposes that ‘if the president does it it’s not illegal.’”  I addressed this same excuse in my forthcoming book — that Bush officials shouldn’t be prosecuted because DOJ lawyers approved of what they did — and wrote:

Under this theory, the president is free to commit whatever crimes he wants with total impunity as long as he can find some DOJ underlings to opine in advance that he has the legal authority to do so, something that every president – who always commands vast hordes of duitful partisans and ideological loyalists – would be able to do in every instance.

Lederman, who also was a Clinton appointee at DOJ, will (like Harold Koh) undoubtedly be on the short list for any number of important legal positions in a future Democratic administration.  If you were a Democratic President, wouldn’t you want him working for you, especially in a capacity which sets the limits on what you can and cannot do?  That would not have been true had he stood up and impeded what was obviously an important priority for this President.

This isn’t to personally impugn Lederman, whose work I respected during the Bush years and with whom I’ve had amicable interactions; the issue is an institutional one.  The reason we have separation of powers is precisely because the President’s personal appointees, even when well-intentioned and basically honest, cannot be counted on to impose meaningful accountability; the Founders warned long ago that the institutional pressures would prevent genuine checks and balances.  We need a separate branch — in the form of Congressional oversight or, in this case, Article III courts not beholden to the President — to make these judgments. The Obama administration could have argued to a court that it had the legal authority and justification to kill Awlaki when it was sued by the ACLU and CCR, but instead chose to hide behind secrecy and standing arguments to avoid doing so, opting instead to rely on the purported secret legal “authority” furnished by the President’s partisan underlings.

More and more, this is how the most vital matters in our democracy are decided: by secret deliberations among the President’s partisan lawyers. Charlie Savage recently gave a speech at a National Security and Civil Liberties conference at Harvard Law School, and he was preceded by President Obama’s top Terrorism adviser, John Brennan.  Brennan had implicitly criticized Savage for publishing an article earlier that week detailing the disagreements among Executive Branch lawyers over the President’s War on Terror powers, and this is what Savage said in reply:

There have been a lot of lessons learned in the decade that has passed since 9/11, but one of them, I think, is that executive branch legal interpretations matter enormously. It is so rare for one of these weighty issues of war powers to be decided on the merits by the courts because they are almost never justiciable. It is also rare for them to be decided by Congress, which is increasingly too dysfunctional to be coherent about anything . . .

As the administration debates the legality of taking such steps, I am sure that some in the government would prefer that the disputes not make their way to the public eye. But I believe that would not be in the national interest. Because for these and so many of the weighty events of the past decade, it was executive branch decision making– and executive branch lawyering – on which everything turned.

Savage’s anonymous DOJ sources on the Awlaki memo tried to emphasize that this decision applies only to Awlaki.  Even leaving aside the fact that Dana Priest already reported almost two years ago that either 2 or 3 other Americans have been targeted by Obama for assassinations, this claim is completely ignorant of how legal reasoning works. Of course the Awlaki killing sets a precedent that can be used for future cases where a President wants to assassinate another U.S. citizen without due process; as Savage put it in his speech about Bush OLC decisions:

By acting on their theories, they were converting them into historical fact. A president had done these things based on these theories, and since he had done them, those theories must be true and so would be available to future presidents to invoke when they, too, wanted to do something that seemed to conflict with a statutory or legal constraint. At its most cynical, that’s how executive branch lawyering works: in the vast areas that are immune to judicial review and take place largely in secret, the accretion of historical precedent – whatever a president in the past got away with — becomes the baseline for his successors to build upon, pushing out further. These precedents are now an immutable part of American history, and will influence how the government handles itself for generations.

[Savage's entire speech -- which also details how Obama has continued the bulk of Bush/Cheney Terrorism policies while trying at first (though not so much recently) to avoid the broad executive power theories that justified them -- is available for purchase online for 99 cents and is well worth reading for those interested].

Whether the President has the authority to order the CIA to assassinate American citizens without due process — whether the Fourth and Fifth Amendments permit such extreme acts — is a matter that courts should decide, not the President’s personal partisan appointees such as David Barron and Marty Lederman.  Seeing how flexible Lederman is willing to be based on who is in the Oval Office only underscores the dangers of allowing all of these vital issues to be decided within the Executive Branch, with no checks, no transparency, no oversight and no due process provided by other branches.

UPDATE: Like Lederman, David Barron — the acting OLC Chief who signed off on the Awlaki memo — was, as I wrote in January, 2009 when praising Obama’s “excellent OLC appointees,” an advocate of the idea (in the Bush years) that “the President’s ‘war powers’ have been wildly overstated” during the War on Terror. In fact, Barron had co-written a Harvard Law Review article with Lederman urging greater restraints on the war powers of the Commander-in-Chief.  Citing that article and Lederman’s history of advocacy, I wrote when their appointments were announced:

It is virtually impossible to imagine that particular group of individuals placing political allegiance to Barack Obama over the principles they have so forcefully advocated over the last several years.

I cringed multiple times when I saw that statement today (since leaving the Obama DOJ, Lederman blogs at OpinioJuris, where he defends Obama’s civil liberties record — about which the ACLU Executive Director said this — with greater fervor and absoluteness than Jay Carney does).  Whatever else is true, this is why the President’s underlings should not be unilaterally and secretly determining the scope of his powers when acting against American citizens.

Meanwhile, Marcy Wheeler unsurprisingly raises several other important points about the Awlaki memo.

UPDATE II: Marcy Wheeler adds this observation:

Given that these anonymous leaking DOJ officials appear to have been on a mission to justify the President’s assassination order, it’s probably inadvisable to hold your breath waiting for the criminal leak investigation to begin.

UPDATE III: For more on the dangers of the administraiton’s selective leaking, see here.