The decision to release documents detailing the controversial legal logic behind the call to kill an American with a drone was not made in the service of justice or transparency. It was pure politics that did it.
The Senate will vote today on advancing President Obama's nomination of Harvard professor and former Justice Department official David Barron to sit on the 1st US Circuit Court of Appeals in Boston. It was Barron who authored top-secret memos, performing the juridical legwork to justify the drone killing of US-born Anwar al-Awlaki in Yemen in 2011, without a trial. Another drone strike, two weeks later, killed al-Awlaki's 16-year-old son, a US citizen. Top Obama advisor Robert Gibbs chillingly justified this death by saying publicly that the teen "should have [had] a far more responsible father."
Legal scholars, human rights activists, and Congress members — including Sen. Ron Wyden (D-Ore.) and Sen Rand Paul (R-Ky.) — have for some time been demanding to see the official justification for the extra-judicial killing of an American. Both the ACLU and the New York Times fought for many months in federal courts to gain information on the legal reasoning for the strike. Now — and only now, with Barron's nomination at stake — the White House has agreed to show senators full, unredacted memos (after some time, further court approvals, and hoop-jumping).
The memos will not surprise us. In many ways, wrangling over their release misses why these documents matter, or exist, at all. They are justifications. They perform the work of inscribing into law that which is extra-legal; they turn extraordinary decisions into the formal, the official, the normal.
We will not, with access to Barron's legal opinions, gain insight into some elaborate legal frameworks that make al-Awlaki's death sit comfortably with constitutional notions of fairness and justice. Indeed, one of these sought-after DoJ memos was leaked last year and contained all the sorts of broad strokes references to "imminent threat" that have been used to justify a host of problematic acts, from torture, to indefinite detention, to scores of civilian deaths. The Justice Department's memos that we have seen so far employ unbounded and problematically vague notions of "imminence" and "self-defense." And the memos exist to do just that. They are, in some sense, artifacts of "justice" in a very pure form: The memos make just, they justify.
It is not for their powerful legal and ethical force that it is important that we gain access to Barron's arguments behind the al-Awlaki strike. Indeed, the justifications released so far are remarkable for the paucity of their argumentative power. So far, they have revealed the DoJ's role for what it is in such situations: A provider of green lights and rubber stamps for vast executive overreach.
We should scrutinize these legal opinions — or what access to them we can gain — as much for their existence as much as their content. Justice Department officials can perform all manner of legal gymnastic tricks to provide grounds for whatever extraordinary acts the US may choose to carry out around the world. But at base, every memo may as well say the same thing, namely: "It's war." Throughout US history, presidents have appealed to war to assume sovereign power, to circumvent Congress, to act illegally, and call it legal. This becomes particularly problematic in our epoch of a borderless War on Terror that can never be won or lost.
When Sen. Paul wrote in a prepared statement on Tuesday, in continued protest of Barron's nomination, "I rise today to say that there is no legal precedent for killing American citizens not directly involved in combat," he forgot that what gets to count as "combat" and "directly involved" is a warped field in these times. Beyond that, and more troubling still, it is justifications like those authored by Barron that get to define and redefine the terrain of war and what is justified within it. The existence of Barron's DoJ memos stand at (albeit highly problematic) odds with Paul's statement. There is, in fact, "legal precedent" for these killings — Barron's legal opinions and these memos do the work of establishing legal precedent. And therein lies the real danger of such kernels of bureaucratic "justice," which justify the unjust. All we can expect from further morsels of transparency over drone killings is further evidence of what gets to be legal in the cavernous gap between ethics and law.
Follow Natasha Lennard on Twitter: @natashalennard