02/07/2013 04:27 pm ET Updated Feb 12, 2013

Jack Goldsmith: The Real Problem With The Drones Strikes Is The Legal Structure

If you were around for George W. Bush's presidency, you will remember Jack Goldsmith. He's the guy who tore up the Bush administration's "torture memos" and then wrote a book about it.

The book was called "The Terror Presidency." It was an unprecedented look inside the Office of Legal Counsel, the office within the Department of Justice that issues legal opinions on the authority of the executive branch.

Goldsmith ran the office from October 2003 to June 2004, and he made no friends in the Bush White House, rescinding a number of legal opinions that were crucial to Bush's "War on Terror," including the one justifying enhanced interrogation techniques such as water boarding, sleep deprivation, and stress positions. Goldsmith rejected the memos on the basis that there was not sufficient legal basis for them.

Goldsmith resigned after less than a year on the job, and after he departed OLC the office reauthorized the memos he had rescinded.

OLC, of course, is back in the news. They are the office that wrote the white paper leaked this week to the press - and the secret legal opinions discussed in the paper - about drone strikes and the process for killing American citizens suspected of terrorist activity.

Goldsmith, who is now at Harvard, has been writing about the memos at the Lawfare blog he founded with two others, and elsewhere. His reaction to the DOJ white paper, on the surface, might surprise some.

"The president faced a threat and had the responsibility to act. Our constitutional democracy does not require the president to remain passive in the face of threats such as al-Awlaki," Goldsmith wrote in The New Republic.

"This is not a step that the president took without fully considering its legality. Even the abbreviated analysis in the White Paper shows how seriously the administration took the legal basis for, and legal limits on, its action ... There is indeed something creepy about writing down the legal basis for killing an American citizen. But the president must dirty his hands every day in keeping the country safe; the nation expects him to do this and will punish him if he does not. His lawyers have a duty to analyze many unfortunately necessary options and actions for legal authority and limits, no matter how creepy the task or the results."

Just by reading those comments, it seems Goldsmith has taken a rather hawkish position. But that's not really the point. He identifies a problem with the entire oversight structure surrounding the government's anti-terrorism programs.

"Judicial review before killing an American citizen might sound like a good idea in the abstract," Goldsmith wrote. "But at present there is simply no constitutional or statutory mechanism for judicial review that the president could have deployed before killing al-Awlaki. Congress might be able to create a system of secret judicial review in this context, though it has shown little interest in doing so and its authority to do so is far from clear."

In The Washington Post, Goldsmith expanded on this mention of a system of review and oversight.

Here's the key point to start with: the Obama administration's "primary legal basis for its global activities against al-Qaeda and affiliates is the September 2001 Authorization for Use of Military Force."

This is absurd, and Goldsmith explained in The Washington Post how it has led to no effective oversight of the president and the executive branch even as the nature of warfare has changed.

The legal foundation rests mostly on laws designed for another task that government lawyers have interpreted, without public scrutiny, to meet new challenges. Outside the surveillance context, Congress as a body has not debated or approved the means or ends of secret warfare (except, perhaps, through appropriations). Because secret surveillance and targeted strikes, rather than U.S. military detention, are central to the new warfare, there are no viable plaintiffs to test the government's authorities in court. In short, executive-branch decisions since 2001 have led the nation to a new type of war against new enemies on a new battlefield without focused national debate, deliberate congressional approval or real judicial review.

What the government needs is a new framework statute - akin to the National Security Act of 1947, or the series of intelligence reforms made after Watergate, or even the 2001 authorization of force - to define the scope of the new war, the authorities and limitations on presidential power, and forms of review of the president's actions.

Goldsmith, however, said he is not optimistic that the Obama administration will seek to work with Congress to create a new legal framework for its anti-terrorism efforts.

A new legal and political foundation for stealth warfare cannot succeed without the initiative and support of the president. The chances of such support, however, are dim. The Obama administration prefers to act based on old authorities and not to engage Congress in establishing new authorities for new wartime challenges. This is unfortunate for U.S. constitutional traditions and for the stability of our long-term counterterrorism strategy. And it is unfortunate for the president, not only because he increasingly acts without political cover, and because his secret wars are increasingly criticized and scrutinized abroad, but also because he alone will be bear the legacy of any negative consequences - at home and globally - of unilateral, lethal, secret warfare.

In his confirmation hearing Thursday, Brennan was asked by Sen. Ron Wyden (D-Oregon) how the administration can facilitate a public debate about its covert activities such as drone strikes. Brennan's response was to cite the hearing he was participating in and "speeches ... to explain our counter terrorism programs."

OLC "establishes the legal boundaries," he said.

There was no mention of a new legal framework, or clearer rules.

Update: 8:51 p.m. - HuffPost's Mike McAuliff reports that Sen. Angus King (I-ME) asked Brennan about creating a FISA-like court with oversight over drone strikes.

Brennan's response: Meh.



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