The New York Times on the Al-Aulaqi Killing

The first thing to say about today's long-belated New York Times editorial on the Al-Aulaqi killing--and the memo justifying it--is that it is not a ridiculous document, and I'm not going to ridicule it. It does not flamboyantly contradict the paper's past statements. It does not willfully misstate the law. It does not pervasively confuse the Times's contemporary policy views with the Constitution (though it doesn't entirely separate the two either). To put the matter simply, it would not beat Jacob Sternberger's entry in my little competition to parody New York Times editorials on national security law. So let's take it seriously, and go through it idea-by-idea as a statement of conventional liberal opinion. The editorial begins with measured praise for the reported OLC memo justifying a hypothetical Al-Aulaqi strike, calling it "a detailed and cautious memorandum," and a "refreshing change from the reckless legal thinking of the Bush administration, which rationalized torture, claimed unlimited presidential powers and drove the country’s fight against terrorists off the rails." Having gone through the purifying ritual of denouncing the prior administration, the editorial then pivots and declares that the memo is nonetheless "an insufficient foundation for a momentous decision by the government to kill one of its own citizens, no matter how dangerous a threat he was believed to be." Why? "For one thing, the administration has refused to make it public or even acknowledge its existence." I am largely in agreement with this criticism--though, to be precise, I don't think it goes in any strict sense to the legality of the strike itself. It undermines, rather, the perceived legitimacy of the strike both domestically and at home, as well as the larger program of which the strike was a part. But it does not affect the merits of the government's arguments in defense of its position. The Times then relatedly criticizes the fact that "The decision to kill Mr. Awlaki was made entirely within the executive branch. The memo was not shared with Congress, nor did any independent judge or panel of judges pass judgment. The administration set aside Mr. Awlaki’s rights to due process." I could quibble here with the Times's use of the phrase "due process" to refer to judicial process; the memo, of course, did not "set aside" Al-Aulaqi's due process rights so much as conclude that they did not preclude his targeting. It reportedly dealt broadly with the question of what due process in fact requires in the novel circumstances of the citizen operationally in charge of enemy terrorist activity and camped out in an ungoverned space overseas. But the more important point the Times raises here is the one Spencer Ackerman raised in our earlier exchange: Why should we trust an executive-only process? My answer is the same:

The second issue, and the one that really animates Spencer’s post, is the question of oversight. That is, he does not believe that merely having a high substantive standard would really restrain President Whomever. And he, quite fairly considers as an antecedent question to that of substantive standards the question of to whom President Whomever will be held accountable for his judgment under whatever standard exists. Does he have to present his evidence in any forum to anyone? Or is he entitled to act on his own, having merely satisfied himself as to the status of the target? As a preliminary matter, let me say that on this score, my mind is open. I have anxieties about the idea of putting judges in the middle of this sort of operation, both out of concern for not judicializing intelligence and out of concern for not implicating federal judges in the dirtiest work of the intelligence community. (To cite only one reason for the anxiety, can you imagine the institutional damage it would do the judiciary the day a federal judge has to answer for approving an errant Predator strike?) There are also pretty significant constitutional barriers to such a regime. Still, I could imagine a judicial review mechanism that might, on balance, do more good than harm. And I certainly wouldn’t reject the suggestion out of hand. All that said, it is worth noting that no such regime today exists, so President Obama faced the problem of Anwar Al-Aulaqi with no extant framework for the sort of thing Spencer is suggesting. There is no forum to which to take the evidence, no forum in which to present it, no forum in which that evidence can be considered against any known legal standard; indeed, there isn’t any known legal standard. The one to which Spencer is objecting is one I made up. There is reportedly one in an OLC opinion somewhere that some folks at OLC–using their best judgment and their best reading of case law–made up. Spencer here is demanding that Obama make a formal case against Al Aulaqi in the total absence of any known legal process by which to do that. The only processes that exist are the general rules for covert actions and whatever heightened scrutiny the executive branch has created for itself when dealing with a citizen.

The Times next describes what, in its view, due process actually requires in situations like this:

Mr. Awlaki was not entitled to full protections — an open-court trial in absentia would have been time-wasting and impractical — but as an American, he was entitled to some. The memo said Mr. Awlaki should be captured if feasible — an important principle, even though the government did not believe it could safely put commandos in Yemen to capture him. Due process means more than a military risk analysis. It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans. And it means taking the decision beyond the executive echo chamber. We have argued that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list.

I agree that unambiguous and public guidelines would be a hugely valuable step, though I don't think they are a requirement of due process. And as I said in my response to Spencer, I have considerable anxieties about any prospective judicial review mechanism here that would implicate federal judges in the targeting of anyone, let alone citizens. That said, this is a policy proposal that is properly part of the mix of ideas for the future. It is not an idea available to President Obama in thinking about how to deal with Al-Aulaqi. And I don't think it's fair to fault OLC, as the Times seems to, for not concluding that judicial review is required when nobody has made any provision for it. Let me just conclude by saying that if all Times editorials on national security legal issues were like this one, I would never have developed my peculiar second life as a media critic. There is much to disagree with here, but it is a document to be argued with, engaged with, and responded to, not mocked. This is admittedly faint praise, and some readers might find it damning. But it is also sincere. My little campaign against the Times has never been about the fact that I disagree substantively with a lot of the views it expresses. Rather, it has always been about the paper's mode of expression and unwillingness to state the law accurately and reasonably characterize opposing positions. This editorial is far closer to the role the Times should be playing in the larger debate, and it gives rise to a much more valuable exchange. In a weird kind of way, it was worth the long wait.