Ben Wittes Contradicts Lord Acton

BIG TIME UPDATE: Welcome Lawfare readers! This post is way too long already, so I'll post a response to all of Ben's text on another entry: The Full Benny. For now, I'll say that I didn't think the first paragraphs directly addressed the questions, and this was getting long, so I snipped his response. Sorry, Ben. Also, Norwegian Shooter is not an unfortunate name. It was my college nickname and it has nothing to do with guns, trust me. (I'm Norwegian-American and live in St. Paul, MN) The name will certainly stick in Lawfare readers' heads, and I hope they comment and come back because of it. No bad publicity and all that. In case you are interested in my few posts about Anders Bering Breivik: No Relation, Norwegian Terrorist and Norwegian and American Prisons. I always meant to go back and write more, but I haven't. Maybe this will provoke me. Again, welcome.

Power Apparently Doesn't Corrupt His Friends

No time for a lengthy set-up, so I'll let ace reporter Charlie Savage provide the background:
The Obama administration’s secret legal memorandum that opened the door to the killing of Anwar al-Awlaki, the American-born radical Muslim cleric hiding in Yemen, found that it would be lawful only if it were not feasible to take him alive, according to people who have read the document.

The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made by President Obama — to move ahead with the killing of an American citizen without a trial.

The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.
This top-secret-yet-partially-leaked memo was written by the then acting chief of the Office of Legal Counsel, David Barron, and his deputy, Marty Lederman. Barron is little known to the general public, but Lederman had some repute by being a harsh critic of the OLC during the Bush administration. Glenn Greenwald provides more background:
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.
Emphasis in the original. After the jump, I'll quote Greenwald on similar flip-flops by current State Department lawyer Harold Koh and previous Bush OLC lawyer John Yoo.

Seems pretty obvious, doesn't it? As Lord Acton has stated, power tends to corrupt. There are innumerable examples of this cliche - which is a cliche because it's true. So what does Ben Wittes, who personally knows both Barron and Lederman, say?
I think the world of Marty Lederman and David Barron, and I do not believe for a second that their judgment was corrupted by power.
From a personal email to me. Okay, I can't argue with a belief Wittes holds, that's his prerogative. However, I have a couple of questions for him:
  1. Can you imagine an opinion issued by Lederman that would lead you to conclude his judgment was corrupted?
  2. What makes Lederman different from all the other people whose judgment was corrupted by power?
Wittes responds:
What would convince me that the work was corrupt? An opinion evincing not merely legal error but legal error I thought they could not honestly believe. In this case, I don't reach the second question, because I think they got something admirably close to the right answer.

As to your second question, I would turn it around: Isn't it possible that, in this case, the law allowed the President and the CIA to do as they wished in the narrow circumstances that they wished to do it? And isn't it possible thus that the situation was less corrupting than you assume? Indeed, isn't it possible that Marty and David adopted about the most restrictive view of the law that the case law would actually support? This is actually what I think happened.
Wittes' judgment of the correctness of the opinion doesn't matter to me. He could be wrong. Again, the opinion itself is still secret. The question is whether Lederman's honest belief changed after he joined the Office of Legal Counsel.

I would be fine if Lederman publicly said "I was wrong back in 2009. I know so much more now, and my opinion of the law has changed." And it is also possible - in fact, very likely - that Lederman can rationalize the two positions as consistent in his head. If he can't, he's not as smart as he appears to be.

But the bottom line is very simple to me. The premises are:
  1. Man seems to hold a particular opinion.
  2. Man gets power to rule what the President can and can't do legally.
  3. Man seems to change that particular opinion to agree with the President.
Conclusion: Power corrupts.

The full Lord Acton quote:
I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. All power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than that the office sanctifies the holder of it.
Greenwald on Koh and Yoo:
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.
It should be noted, as he himself has done, that Greenwald was a doe-eyed fan of the OLC appointments at the dawn of the Obama administration:
There is some genuinely good news today from the Obama camp:   following up on the appointment of the excellent Dawn Johnsen to be OLC Chief, it was announced yesterday that Johnsen’s second-in-command at OLC will be Harvard Law Professor and vehement Bush critic David Barron, who, among other things, co-wrote this superb Law Review article arguing that the President’s “war powers” have been wildly overstated over the last many decades while Congressional power in this area has been vastly understated. Also joining the Justice Department in a still-unknown capacity is one of the smartest, most principled, and most unyielding opponents of the legal radicalism that prevailed over the last eight years:  blogger and Georgetown Law Professor Marty Lederman (who co-wrote that law review article with Barron on the Constitutional limits on the “commander-in-chief” powers).  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.
Dawn Johnsen was never given a confirmation hearing. Obama backed down to Republican threats. Greenwald obviously lost his innocence from this one. One more thing. Marcy Wheeler, Emptywheel, has provided an interesting timeline:
  • December 24, 2009: Administration tries unsuccessfully to kill Awlaki as collateral damage
  • Before January 26, 2010: Awlaki may or may not be placed on CIA (or JSOC) kill list
  • April 2010: Awlaki put on kill list
  • June 2010: OLC opinion authorizing Awlaki assassination
  • June 2010: David Barron announces his departure
  • July 2010: Marty Lederman announces his departure
  • August 2010: ACLU and CCR sue on Awlaki targeting
  • September 2010: Administration considers charging Awlaki
  • September 2010: After not charging Awlaki, the government declares the material just leaked to Charlie Savage a state secret
  • April 2011: The Administration tries, but fails, to kill Awlaki
  • September 2011: The Administration assassinates Awlaki and Khan
In other words–as Savage suggests–they had Awlaki on the kill list before they had actually done the review whether or not he should be there.

I can see why I’d want to leave the department if that had happened to me in OLC.
I don't think that's why they left. The main point is that the Administration was trying to kill al-Awlaki before it got a written opinion - from within the Administration, no less - that it was legal to do so. If you substitute "waterboard Abu Zubaydah" for "kill al-Awlaki," it likewise applies to the Bush43 Administration. But that's another story.