After months of internal debate, the Obama administration is planning to reveal publicly the legal reasoning behind its decision to kill the American-born leader of al Qaeda in the Arabian Peninsula, Anwar al-Awlaki.
Awlaki, whom American officials had identified as the chief of external operations for the al Qaeda affiliate, was killed in a CIA drone strike last September in Northern Yemen. The targeted killing was one of the most controversial actions in Barack Obama’s war on terror. Civil libertarians and human-rights activists have argued that it amounted to a summary execution on the basis of secret evidence and without due process. Defenders of the administration have maintained that the killing was a necessary and lawful act of war to prevent an imminent threat to the safety of the American people.
But the Obama administration itself has said next to nothing about it. At a farewell ceremony for retiring Joint Chiefs chairman Mike Mullen just hours after the strike became public, Obama hailed “the death of Awlaki,” calling it a “major blow” in the fight against al Qaeda. But he made no mention of U.S. involvement in the operation. (The CIA’s drone program is classified and therefore not publicly acknowledged by government officials.)
Now the administration is poised to take its case directly to the American people. In the coming weeks, according to four participants in the debate, Attorney General Eric Holder Jr. is planning to make a major address on the administration’s national-security record. Embedded in the speech will be a carefully worded but firm defense of its right to target U.S. citizens. Holder’s remarks will draw heavily on a secret Justice Department legal opinion that provided the justification for the Awlaki killing. The legal memorandum, portions of which were described to The New York Times last October, asserted that it would be lawful to kill Awlaki as long as it was not feasible to capture him alive—and if it could be demonstrated that he represented a real threat to the American people. Further, administration officials contend, Awlaki was covered under the congressional grant of authority to wage war against al Qaeda in the wake of 9/11.
An early draft of Holder’s speech identified Awlaki by name, but in a concession to concerns from the intelligence community, all references to the al Qaeda leader were removed. As currently written, the speech makes no overt mention of the Awlaki operation, and reveals none of the intelligence the administration relied on in carrying out his killing. (White House spokesman Tommy Vietor declined to comment).
That circumspect approach contrasts dramatically with the administration’s posture in the aftermath of Osama bin Laden’s death, when the president personally addressed the nation to announce the al Qaeda leader’s demise, and key members of his team provided on-the-record accounts of the operation in almost novelistic detail. But the circumstances of that operation differ in crucial respects from the Awlaki strike. The latter involved the CIA’s still secret drone program, and Awlaki was American-born, adding an additional level of sensitivity.
In the aftermath of the Awlaki operation, civil libertarians and some prominent members of Congress called on the administration to make its legal analysis public. Some supporters of disclosure, including Sen. Dianne Feinstein of California, have made the case to Obama officials that speaking openly would be the best way to maintain public support for a program that they believe is necessary but remains controversial.
For Obama the question pitted two core principles that he has, at times, struggled to balance: rolling back the Bush administration’s penchant for secrecy in counterterrorism, and adequately protecting the intelligence community’s most sensitive sources and methods. Obama had guided U.S. counterterrorism policy in a difficult political environment and has often disappointed his liberal base, which believes he has sided with the policies of his predecessor, George W. Bush, a surprising amount of the time.
The calls for transparency in discussing the Awlaki strike were batted away at first. But behind the scenes, several prominent lawyers in the national-security bureaucracy began lobbying their colleagues and superiors for some degree of disclosure. Among them were Jeh C. Johnson, the Defense Department general counsel, and Harold Hongju Koh, the State Department legal adviser. The national-security “principals” quickly divided into camps. The CIA and other elements of the intelligence community were opposed to any disclosures that could lift the veil of secrecy from a covert program. Others, notably the Justice and State departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation. Among the proposals discussed in the fall: releasing a “white paper” based on the Justice memo, publishing an op-ed article in The New York Times under Holder’s byline, and making no public disclosures at all.
The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest? Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. The New York Times has filed a lawsuit against the Obama administration under the Freedom of Information Act seeking the release of the Justice Department legal opinion in the Awlaki case. (The department has declined to provide the documents requested.)
It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”
A number of Obama officials supported the move in part because they considered it the right policy, but also because it represented an opportunity to separate themselves from the Bush administration. “We need to show we’re different,” said one senior official, who declined to be named. “If you let these things fester, they become part of the narrative.”
In the end, there was a consensus that the best vehicle would be an upcoming speech on national-security policy that Holder wanted to give. The model was a low-key address that the State Department’s Koh gave in March 2010 on the legal theories underpinning the Obama administration’s counterterrorism policies. Buried deep in the speech, Koh defended the legality of targeted killing without explicitly confirming the CIA’s secret drone program. The address, delivered at a meeting of international lawyers, was widely praised for its forthright, if narrowly drawn, approach to a controversial policy.
A recommendation to go public on Awlaki was made by the national-security “principals” in November and received a provisional signoff from the White House last week. Tom Donilon, the national-security adviser, then circulated a decision memorandum to be signed by key officials throughout the government. It included a five-page draft of Holder’s proposed remarks on the legal rationale for the Awlaki strike.
No venue has been selected yet for the Holder speech. But as he prepares his address, the administration is resuming its drone strikes on al Qaeda. Late last week, U.S. officials confirmed to Reuters that Aslam Awan, a senior operations chief for al Qaeda, was killed in an attack in North Waziristan. The debate over the CIA’s covert program will linger long after Holder has made his remarks.