WASHINGTON -- Civil libertarians are expressing dismay over a new report that names two prominent one-time critics of the abuse of presidential power as the forces behind a controversial memo authorizing Obama to assassinate an American citizen.
The memo, described Sunday in an article in The New York Times, was reportedly signed by David Barron and Marty Lederman, two law professors who frequently challenged President Bush's legal stances on his war powers before joining the Obama Office of Legal Counsel.
"It's always more painful for civil libertarians to be stabbed in the back by a friend," said Jonathan Turley, a scholar at George Washington University law school who has long been a fierce opponent of expansive interpretations of executive powers. "There's a real feeling of the Ides of March, that the Obama administration has enlisted civil libertarians to sort of do its dirty work."
The memo authorized the assassination of Anwar al-Awlaki, an American-born member of al-Qaida in the Arabian Peninsula who was killed two weeks ago in Yemen by an American drone strike. It concluded that Awlaki was a legal combatant in a conflict that had been authorized by Congress shortly after the 9/11 attacks, according to the Times report.
Several legal analysts and civil liberties groups contacted by The Huffington Post on Monday cautioned that without reading the memo itself, which remains classified, it would be impossible to fully analyze the legal basis of the ruling. Still, some argue that if the unlimited detention of an enemy combatant is unlawful, ordering his death -- without a judicial check -- certainly ought to be; others say al-Awlaki represented an imminent threat to the U.S., akin to a sniper on a rooftop, who could legally be killed by police.
But it was the attachment of Barron and Lederman's names in the story -- they were described as the memo's "principle" authors, with Barron having signed it -- that startled so many observers, particularly since it came on the heels of reports that a third prominent Bush critic, the State Department's legal adviser Harold Koh, had earlier defended Obama's decision to forego congressional approval before the Libya conflict.
"If there were two people you wouldn’t have expected to underwrite expansive new powers for the president, they would have been Harold Koh, who built his career arguing against the Imperial Presidency, and Marty Lederman, who, right up until the time he entered the Obama administration, repeatedly made the case against the Bush-era expansion of executive power," said Gene Healy, of the libertarian Cato Institute. "Talk about 'growing in office.'"
Writing regularly on the legal blog Balkanization, Lederman spent much of the later Bush years passionately and elegantly attacking the analysis underpinning Bush-era conclusions on unlawful wiretapping, indefinite detention, and torture.
In late 2006, for instance, he wrote a long post decrying what he saw as an unjustified and sketchy expansion of the definition of "unlawful enemy combatant"; the next year he suggested that officials who approved the use of torture may have broken specific laws.
Barron, for his part, co-wrote with Lederman a widely cited 2008 Harvard Law Review essay in which they contended that the war powers claimed by Bush had often exceeded the authorities historically granted to the executive.
Barron and Lederman, who have both left the administration, did not respond to emails requesting comment.
Some of the critics said that whatever the basis for the Awlaki ruling may have been, the decision to selectively release only parts of it -- and the names of two well-known civil libertarians as the authors -- followed a Bush-era precedent of keeping important legal decisions secret.
"We all denounced the Bush administration use of secret law -- secret memos giving them authority and then resisting demands to review them," said Turley, who is currently representing several members of Congress in a lawsuit challenging the Libya decision reportedly advocated by Koh. "The Obama administration is doing the same thing, strategically releasing parts of the memo or their conclusions."
But it was the seeming shift of yet another set of longtime critics that struck a chord.
"The legal academy is still reeling from the participation of so many law professors in the Bush abuses. I knew John Yoo" -- who famously scripted the memo authorizing the use of torture in the Bush years -- "before he went into the Bush administration -- we'd always been friendly, and we actually agreed on a bunch of things in the past. I was shocked when I first heard of his involvement in these things. It's always shocking to read about people like Koh and Lederman being so quickly corrupted by their involvement in government."
Eric Posner, a law professor at the University of Chicago, disagrees with such a stark outlook, telling HuffPost that the job of legal counsel to the president doesn't afford the same latitude as being an analyst or academic.
"It's a little glib to [call them hypocrites]," he said. "First, you need to know exactly what they wrote, and the second, more important point, is you just have to realize they've taken on a different role in the government. When you're in the OLC in the executive branch, you're an employee, you have a certain job, it's different from being a professor but is more like being in a firm. You can't go into a firm and say I'm only going to profess my own views."
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