In case anyone finds it useful or interesting, over at Lawfare I have posted up links all in one place to the leading speeches by the US government’s senior national security lawyers on targeted killing, hypothetical drone programs, covert action, and related national security law issues – Harold Koh (DOS), Jeh Johnson (DOD), Eric Holder (DOJ), Stephen Preston (CIA) – and one by non-lawyer but senior counterterrorism advisor John Brennan. I also comment there on the role of such speeches in establishing the foreign policy, legal views, and so-called “opinio juris” of the US government, and talk about three different clusters of questions raised by critics:
- The first is a question of process, including both the mechanism and the way in which information on legal policy is conveyed in these matters. To start with, are “speeches” enough? After all, as Charlie Savage said, they have no footnotes or legal citations. Shouldn’t the administration release the legal opinions prepared by OLC or other legal advisers? Perhaps any records of any of the internal officials involved in decisions to put someone on a target list? The point at bottom is to say that mere speeches filled with assertions and declarations are not by themselves sufficient.
- The second is also a question of process – but it goes not to what is released by way of explanation, how it is stated, by whom and in what detail – but instead goes to the question of who should be able to review the substantive decisions. Which is to say, is the oversight process sufficient and, not to put to fine a point on it, shouldn’t there be judicial review of this in some fashion?
- The third is a question of the substance of the law, both domestic and international, on the actual issues of targeted killing, drone warfare, covert actions, etc. – is it right, or at least a plausible claim?