When it comes to targeted killing, however, this explanation fails to fully convince. As a recent ACLU legal filing recounts, government officials have effectively acknowledged targeting operations in many contexts, and frequently engage in self-serving leaks about the operations and their legal justifications. Someone in the government, for example, leaked the contents of a Justice Department legal memorandum in support of the targeted killing of a U.S. citizen to the New York Times. Such leaks are wrong because they are probably illegal, because they damage the diplomatic goals of covertness, and because they suggest that the executive branch is trying to have its cake (not talking about the program to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking to get credit for the operation and portray it as lawful). They also make government protestations about discussing the factual and legal basis for targeted killing seem hypocritical.
There are at least two separate issues about what information should be disclosed. The first concerns the legal basis for the targeted killing program. In addition to the New York Times leak, four senior Obama administration officials -- Attorney General Holder, Defense Department General Counsel Jeh Johnson, State Department Legal Advisor Harold Koh, and senior counterterrorism advisor John Brennan -- have given major speeches outlining this legal basis. These speeches go far beyond the usual public explanations for actions of this sort. But, as Charlie Savage of the New York Times said of Holder's Northwestern talk, they "fell far short of the level of detail contained in the Office of Legal Counsel memo." After Holder's speech, the nation has a general explanation of the constitutional and international law bases for the administration's actions. But the speech also shows that the legal rationale for targeted killing can be discussed without disclosing operations, targets, means of fire, or countries, and without revealing means and methods of intelligence gathering. The Holder speech, in short, weakens the rationale against disclosing more detail and analysis about the legal basis for (and limitations on) targeted killings.
A second disclosure issue concerns the process by which targeting decisions are made and the factual basis for those decisions (including the evidence of ties to al Qaeda, the imminence of the threat posed by the target, the extent of cooperation with other nations, and the reasons capture is not feasible). This is the most legitimate concern of critics and even some supporters of the president's targeted killing campaign, especially when that campaign involves a U.S. citizen. There is every reason to think that the government was super careful and extra scrupulous in the process preceding the Awlaki killing. But despite the elaborate system of deliberation, scrutiny, and legitimation supporting U.S. targeting practices, the U.S. government can and sometimes does make mistakes about its targets. There is simply no way to wring all potential error from the system and still carry on a war. Even full-blown ex ante judicial review of targeting would not guarantee the elimination of errors.
The government needs a way to credibly convey to the public that its decisions about who is being targeted -- especially when the target is a U.S. citizen -- are sound. The government did provide this kind of information when there was public uncertainty about whether Awlaki was an operational leader of al Qaeda in the Arabian Peninsula or merely an inspirational figure. In its sentencing memorandum for "underwear bomber" Umar Farouk Abdulmutallab, the government revealed details about Awlaki meeting with Abdulmutallab and providing assistance for the planned attack on a U.S.-bound plane on Christmas Day 2009. This disclosure is credible because it is based on Abdulmutallab's debriefing statements. And because it is based on those statements, it does not reveal the sensitive intelligence that originally informed the government's conclusion that Awlaki was an operational leader. Outside this unusual context, however, it is hard for the executive branch to disclose more than it has about the factual basis for its high-value targeting decisions without disclosing and thus destroying its intelligence-gathering techniques or its arrangements with foreign governments. And that, in turn, leaves the government in the unattractive position of asking the public to trust its controversial targeting decisions without any outside confirmation of the facts.
I can think of only two ways to improve the current arrangement. First, the government can and should tell us more about the process by which it reaches its high-value targeting decisions. It should answer a number of questions, such as: How many layers of bureaucracy are involved? How many people, from how many agencies, typically weigh in on such decisions? How long do the deliberations generally take? What, in general, are the intelligence review processes like? How long does a typical congressional briefing on such an issue take? How many members of the relevant congressional committees show up? Does the administration show committee members legal analyses? Do committee staffers, including committee lawyers, participate? How much sharing is there, if any, between the intelligence and armed services committees? Are targets or operations sometimes, frequently, or always revised by these processes? Are they sometimes, or frequently, aborted? The more the government tells us about the eyeballs on the issue and the robustness of the process, the more credible will be its claims about the accuracy of its factual determinations and the soundness of its legal ones. All of this information can be disclosed in some form without endangering critical intelligence.
Second, the government should take advantage of the separation of powers. Military detention at Guantánamo Bay, Cuba has become more legitimate and less controversial in part because another branch of government, the judiciary, has looked at the detentions and agreed with the executive's assessment. Such judicial review is inappropriate for targeting decisions and, in any event, not available. But a different adversarial branch of government -- Congress -- can play an analogous role. The congressional intelligence and arms services committees know a lot about the president's targeting policies, and have gone along with the president's actions. These committees could (without revealing sensitive information) do more to enhance the president's credibility by stating publicly -- and preferably in a bipartisan fashion -- that they have monitored the president's high-value targeting decisions and find them, and the facts and processes on which they are based, to be sound. Congress does not typically like the responsibility (or the hard work) that such an endorsement would entail. But especially when courts are not available to review the president's actions, it should step up its public involvement in scrutinizing and vouching for (or criticizing) the president's targeting decisions. Indeed, the president should insist on it.
While the Obama administration can improve its public explanations for targeted killing, its critics have wildly overstated the legal concerns about the practice. Even exaggerated criticisms, however, can serve a useful role. As I detail in my book, an important lesson of the first decade of indefinite war against al Qaeda and its affiliates is that relentless and sometimes brutal scrutiny and criticism of the presidency from all quarters forces the presidency to engage in self-reflection and public justification that, in the end, strengthen it. The criticisms of targeted killing have produced public debate and limited judicial scrutiny of targeted killings that have enhanced the legitimacy of the practice. They have also encouraged the executive branch to tread very carefully and to provide much more public information and explanation about its operations than usual. There is room for improvement, of course, but we should not be blind to how deeply the Obama administration's targeting killing practices are embedded in the rule of law.
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