I don't know if Marty Lederman would consider me his friend. We've shared drinks and laughs and friendly conversations and mutual love of certain indie-rock bands and debates about legal dimensions of the war on terrorism. So I don't know if that qualifies. But I've always viewed him fondly, thought he was cool and respected his opinions. If we've ever been friends, I doubt -- against hope -- that we will remain that way by the time I finish this post. But such is life.
I learned from Charlie Savage that Marty, a recently departed lawyer in the Justice Department's Office of Legal Counsel, co-authored a secret memo with his boss, David Barron, blessing the Obama administration's desire to assassinate an American citizen, Anwar al-Awlaqi, without a trial. I have every confidence that Marty crafted that memorandum in good faith, making an arduous attempt at reaching a responsible conclusion. And the decision to kill Awlaqi -- the responsibility, and the consequences -- is Barack Obama's.
But it's not Obama's alone. Judging from Charlie's story, Marty and Barron constructed what will serve as a precedent for future assassinations of American citizens, based on two criteria: the president says someone is a dangerous terrorist; and his advisers assure him that capturing that person is unfeasible. Charlie reports that the memo "did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat," but my non-lawyer mind does not understand how the memo can avoid setting a precedent.
I'm not going to pretend I can read Marty's mind. But I seriously question how this memo reflects anything but the ratification of a forgone conclusion. Its arguments, as reported by Charlie (the best reporter working on national security law), are flimsy, even to my non-lawyer mind. I suspected such a forgone conclusion when it came to the torture memos penned by Yoo, Bybee, Addington, Gonzales, Haynes, etc. I would be guilty of hypocrisy and cowardice if I did not extend those suspicions to someone I actually like as a human being, and whose politics are far similar to my own.
The ACLU (where, full disclosure, my wife works) sued to acquire the memo Marty wrote. The Justice Department successfully argued that it is a state secret. And yet someone managed to provide it to Charlie. The argument, as presented, amounts to corralling precedents and dismissing objections. And I imagine that it's vigorously argued. Lawyers can pull together cases for most everything. But it it allows President Whomever to run a play like this:
PRESIDENT WHOMEVER: My God, Citizen al-Whatever -- that man is dangerous. We've received intelligence indicating as much, not that the public will ever see it. Is there any way we can apprehend him?
HIS CABINET: It's a gamble. We can have no certainty that he'll be successfully apprehended. And there's a risk that the team assigned to apprehend him will be injured or even killed.
PRESIDENT WHOMEVER: I've heard enough. If we've got eyes in the sky on him, authorize a Hellfire strike.
It gives me no pleasure to write this. I hope I'm wrong -- in my particulars, or in my overview, or any other sense. And policy decisions are not primarily the responsibility of lawyers, though lawyers bear responsibility for the cases they construct blessing such policy decisions. But I see nothing in that memo that presents the scenario above from unfolding. In the absense of a process limiting it, the slope will slip, until someone decides that it's too arduous to nab an American citizen on American soil whom the government decides is dangerous. And when someone around a Situation Room table asks if that's OK, those who believe it is will reach for Marty's memo.