by Michael Dorf
My latest Verdict column takes issue with what I surmise was the attitude towards the law of four lawyers that the Obama Administration consulted before ordering the Navy SEAL raid that killed Osama bin Laden. A NY Times report last week revealed that four high-ranking lawyers--but only those lawyers--worked on memos that ultimately resolved various questions in favor of the legality of the operation. The column focuses on one issue: whether an attack against a hostile non-state-actor (Al Q'aeda) in the territory of a neutral country (Pakistan) is permissible under the ostensible principle allowing such force when the host country is "unwilling or unable" to deal with the hostile non-state actor in circumstances, as these, where prior notice is not given to the host country for fear that such notice will result in the target being tipped off. Given the many legal uncertainties, I conclude that the only honest answer is "maybe." I fault the bin Laden memo writers insofar as their green light on this question was unequivocal, which the Times story suggests that it was.
However, I acknowledge that an affirmative answer is at least plausible. It is not plausible to claim, as the memos and a parallel public document do, that even if international law forbade the raid on Abbotabad, the president could order it because a non-self-executing treaty does not bind the president. That claim, I note, is false. I provide a link to a recent blog post by Deborah Pearlstein making the same--I would have thought obvious--point. I conclude that the memo writers who espoused this position are either incompetent (which is extremely doubtful given that the memo authors are all highly accomplished lawyers) or took a view of their job that is disturbingly reminiscent of the attitude of the authors of the Torture Memos in the Bush Administration. A government lawyer ought to provide a reasonably balanced view of the law, not simply tell the policy makers that they are legally entitled to do whatever they want to do.
The column directs its criticism at the lawyers who wrote the bin Laden memos but there is another possible target: President Obama himself or whoever, on his behalf, decided to seek legal advice from the top lawyers for the CIA, NSC, Joint Chiefs, and Pentagon rather than from the Office of Legal Counsel (OLC) or any other unit of the Justice Department.
Let me be clear that in my view all government lawyers have a duty to give balanced legal advice but, that said, it is to be expected that lawyers in particular departments or agencies will tend to take the perspective that the department or agency favors on policy grounds. If you go to lawyers for the military or the intelligence services, ceteris paribus, they will favor the conclusion that a proposed use of force is lawful. But it is precisely because of this kind of risk that, over time, OLC has come to be valued as a legal unit within the executive branch that tells it like it is.
That is not to say that OLC is completely apolitical. Democratic appointees hold different views from Republican appointees, in much the same way that judicial appointees hold ideologically tinged views about all manner of legal questions. But these differences operate within a range of tolerated diversity of viewpoints and against the background assumption that whoever is running OLC is sincerely engaged in a quest for right answers rather than in simply providing cover for the Administration. Indeed, OLC has even developed a tradition of "precedent" modeled on judicial precedent. The issuance of the Torture Memos under Jay Bybee was--among other things--a black eye for OLC, but their subsequent withdrawal and repudiation by Jack Goldsmith even during the Bush Administration went a long way towards restoring OLC's role as a credible source of legal guidance.
Accordingly, there is reason to think that if President Obama had asked OLC for its views about the legality of the planned bin Laden mission he would not have been told that a non-self-executing treaty imposes no legal constraint on him. The NY Times story suggests that the Administration only consulted with the four lawyers who wrote the bin Laden memos because they were very worried about leaks. No doubt the Administration had good reason to limit the number of lawyers it consulted, but that alone is not a sufficient explanation for why the four national security lawyers were selected rather than, say, the Attorney General, the head of OLC, and a couple of their most trusted deputies. The choice between those two groups makes more sense if the president was forum-shopping for lawyers who would tell him what he wanted to hear.
Two factors complicate that conclusion, however. First, the lawyer who publicly avowed the erroneous view that non-self-executing treaties are not binding law for the president is Caroline Krass. She issued that statement as part of her confirmation hearing for the position she now holds--General Counsel for the CIA. Krass previously was an OLC lawyer in the Clinton Administration and was acting head of OLC under President Obama. Accordingly, it's possible that the view that I describe as either incompetent or lawless actually would have been the view propounded by OLC if President Obama had asked OLC for what became the bin Laden memos.
Second, there may have been quasi-jurisdictional reasons for consulting the lawyers for the defense and intelligence agencies rather than OLC. My sources tell me that there is a tradition of presidents going to the former for determinations of the legality of particular military operations. I'm not sure how well this distinction holds up in practice. For example, the Bush Administration went to OLC for the Torture Memos and the Obama Administration went to OLC for an opinion on the legality of drone strikes against U.S. citizens. Perhaps there is a principled line that explains why those matters fell within the jurisdiction of OLC while advice regarding the bin Laden mission fell outside of it, but if so, the line is not obvious to an outsider.
Accordingly, despite some doubts, there remains the possibility that the Obama Administration cut OLC out of the loop on the bin Laden questions so as to avoid hearing bad news.