Wednesday, November 04, 2015

Why Didn't Obama Ask OLC About the bin Laden Raid?

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.


Marty Lederman said...

I have some thoughts on all this here:

Note that I think (i) the lawyers probably did not offer this advice; (ii) there's no particular reason to think that on that (unanswered) question OLC would have given different advice than the answer you criticize, since the theory derives from a 1989 OLC opinion that hasn't ever been repudiated (even if it has also rarely been invoked); (iii) I agree that it's a bad argument; but (iv) there's a more serious statutory argument that is trickier, but that also did not need to be (and probably wasn't) answered here.

Hashim said...

Mike -- I get that non-self-executing treaties bind the US as a whole as a matter of intl law. But if the Supremacy Clause doesn't require States to comply with non-self-executing treaties (see Medellin), then why is the President required to comply with such treaties either? Shouldn't he have at least as much freedom (and arguably considerably more freedom) as individual States to choose to place the US in breach of its international obligations?

Marty Lederman said...

Hash: Did Medellin says that States are free to put the U.S. in breach of treaties? That would be quite an extraordinary proposition.

Marty Lederman said...

See also Justice Stevens's concurrence: "Under the express terms of the Supremacy Clause, the United States’ obligation to “undertak[e] to comply” with the ICJ’s decision falls on each of the States as well as the Federal Government. One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Conven­tion—ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another."

Hashim said...

Depends what you mean by "free." Medellin allowed TX to put US in breach of a non-self-executing treaty, in the sense that it refused to enforce the treaty against TX pursuant to the Supremacy Clause. Now, I suppose you could say that TX was technically violating the law and there was simply no remedy for its lawlessness. But I think the better reading of Medellin is that TX wasn't acting illegally at all, because the treaty was merely an "international commitment," "not domestic law," and so the only entity in breach of anything was the United States. And regardless, whether TX was acting legally or instead acting illegally with impunity, hard to see why the President shouldn't be able to do the same thing.

Michael C. Dorf said...

I agree with Marty but I think that Hash's reading of Medellin is plausible. One could say that the obligation of Vienna Convention fell on Congress to enact legislation that would then be enforceable domestically as against state officials. In this view, Congress (and, insofar as he participates in the national legislative process, the President) would have been in breach of their duty to give domestic effect to the treaty. But I do think that the states are situated differently from the President. At least w/r/t treaties that limit the use of force--such as the UN Charter at issue here--the international law obligation is not merely an obligation to seek domestic implementing legislation but actually to comply. And the parts of the U.S. government that undertake and make war--Congress and the President--would clearly be the relevant actors to comply with or violate international law.

Marty Lederman said...

Hash, do you think that President Truman and the Senate that ratified the Charter intended that Texas would be free under federal law (Constitution plus treaty) to put the U.S. in breach of the Charter? The question virtually answers itself. Even if there's no judicial remedy for Texas's breach unless and until Congress creates one, that's true of numerous treaty provisions, and constitutional and statutory provisions, as well. I concede that there's some language in Roberts's opinion suggesting that the Charter is not "domestic law." And on that view, Texas of course would have no obligation not to breach. My point, however, is that that dicta in Medellin is plainly wrong and ought to be repudiated.

Hashim said...

Marty -- if a non-self-executing treaty is indeed "domestic law," then how do you explain the *holding* of Medellin that the treaty isn't directly enforceable against TX under the Supremacy Clause? I find it hard to understand the view that TX was violating domestic federal law in Medellin and yet the Supremacy Clause nevertheless didn't require TX to cease the violation. Medellin wasn't a situation like Bivens, etc., where the question was whether Congress has created a cause of action to enforce federal law. Rather, there were ongoing state court proceedings, which normally are required to comply with all domestic federal law directly under the Supremacy Clause. Is there any other circumstance where a state court is openly allowed to flout domestic federal law notwithstanding the Supremacy Clause? I don't think the holding of Medellin makes much sense *unless* a non-self-executing treaty isn't really domestic law at all, but merely an international commitment. And thus it's no surprise that this is precisely how Medellin sets up its analysis. In short, I don't think the language in Medellin was dicta; rather, it seems to me to have been integral to its rationale.

Marty Lederman said...

Hash: The Supremacy Clause did require TX to cease the violation--it imposes obligations on the Texas governor, courts, and legislature, even if the Senate (on the Court's reading) didn't want federal courts to enforce that obligation. That's JPS's view, and it makes perfect sense. Indeed, it's more or less JGR's reasoning, as well -- that the President and Senate wanted all such disputes to go to the Security Council, where the U.S. could veto, in which case Art. 94 "is not a directive to domestic courts" and there's no "indicat[ion] that the Senate that ratified the U. N. Charter intended to vest ICJ decisions with immediate legal effect in domestic courts." Alternatively, Roberts sort of reads Art. 94 -- unlike Art 2(4)--to be mostly hortatory, not a straight obligation at all: "It does not provide that the United States 'shall' or 'must' comply . . . ." Art. 2(4) does, however.

Hashim said...

Marty, I don't understand your response. In medellin, the Texas state court held that it was going to ignore the Avena judgment requiring the US to excuse state-law procedural defaults, because the treaty obligation to comply with the Avena judgment was not domestic law binding on state courts under the supremacy clause.

If the treaty obligation was in fact domestic law binding on state courts under the supremacy clause, then the sct should have reversed: the state court's application of state procedural default was based on an erroneous statement of federal law.

It's utterly irrelevant that *other* Texas officials like the governor could have satisfied the treaty obligation. Imagine if the Texas court had said the 6A jury-trial right wasn't binding on state courts. The sct obviously wouldn't affirm just because the Texas governor could still pardon all defts convicted in involuntary bench trials.

Nor does the Senate have the power to excuse state courts from complying with the supremacy clause. If something is valid domestic law, then the supremacy clause requires state courts to comply. Congress can't pass a law purporting to authorize state courts to ignore valid federal law.

Instead, what Congress can do is eliminate any federal law that purports to bind state courts. In this case, by making a treaty non-self-executing, and thus a mere intl commitment rather than valid domestic law.