Secret DOJ Memo re Awlaki Targeting, and NYT Public Editor on Policy-By-Leaks

I’m traveling and can’t stop to comment, but check out Charlie Savage’s New York Times story describing a secret DOJ memo, reportedly principally authored by David Barron and Marty Lederman, that provided the justification for putting Anwar Al-Awlaki on the targeting list in the first place.  Crucial reading on the targeted killing and drone debate.

One thought, however. As Jack Goldsmith and Ben Wittes have argued at Lawfare, and I have argued here and at Opinio Juris, although it is certainly helpful to have a summary in the press about the issues discussed in the secret memo and their resolution, the fact that it is merely leaked, quite apart from not making available the actual text, is a grave part of the problem here.  If it can be shown to press people and written about at length, then it should be made available publicly, as official policy and part of the process of defending the policy.  Leaks de-legitimize policy over the long run, and reforms to the accountability and oversight of “covert” actions that are not truly covert need to provide some mechanism for releasing information on their legal justifications.  It’s good that this information is out there; it is bad that it was put out there through leaks.

Update:  See also this very interesting opinion piece by the New York Times Public Editor, Arthur Brisbane, in the Sunday Times, on the problems of reporting on government policy that proceeds, in essence, by leaks.  As Brisbane says, this puts the Times in the awkward position of appearing to be manipulated to give the government’s statements in order to report the news.  Brisbane was kind enough to quote me:

Kenneth Anderson, an American University law professor who told me he is a “centrist conservative” on national security issues, said he supports the use of drone technology for counterterrorism but cannot abide how the administration is handling the program publicly.

“One area in which I have been relentless in criticism of the Obama administration has been their refusal to say anything about it, and at the same time essentially conducting the foreign policy of the U.S. by leaked journalism,” he said. “I just don’t think that is acceptable.”

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