A fascinating and provocative blog post is being discussed intensely on conservative websites in the wake of the assassination of Osama bin Laden. The post is controversial, even among conservatives, because of the rhetoric used by “White House Insider,” the unnamed source relied upon to describe the events (arguing that a temporary “coup” led by CIA Director Leon Panetta was necessary to proceed with the operation against bin Laden) as well as because the blogger who quotes the source, “Ulsterman,” has been known to have reliability problems in the past.
Nonetheless the post is worth considering even if based as much on speculation as on fact because it presents a fascinating hypothetical, or “hypo,” as we law professors like to say. And since this is exam time, hypos are very much on the minds of law professors. This particular “hypo” is useful because it deals with the legality of the OBL operation from an angle that, as of yet, has not gotten very much attention.
While there has been vigorous discussion about the legality under international law of entering Pakistan without permission or killing OBL instead of arresting him, the question of when and how a US citizen like a Navy SEAL or a member of the Delta force is given a legally proper order under US domestic law to kill someone has not been discussed.
If, in fact, the US “assaulters” on OBL did not have legal authority under US domestic law then they would have been engaged in assassination and those who ordered them to carry out the killing would likely have also been guilty of assassination as well as of, possibly, a kind of coup d’etat as the Insider story suggests.
The chief lawyer for the State Department, Harold Koh, laid out the Obama administration’s view on these issues in a very widely followed address to the American Society of International Law in 2010. He stated:
Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force ….
The principles of distinction and proportionality that the US applies are … implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law ….
Some have argued that our targeting practices violate domestic law, in particular, the longstanding domestic ban on assassinations. But under domestic law, the use of lawful weapons systems — consistent with the applicable laws of war — for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’.
In addition to the importance and relevance of these legal issues, the Insider post is startlingly detailed and complex and yet entirely consistent with the kinds of bureaucratic and legal battles that one might expect to go on at moments of heightened political tension or crisis. White House Insider has also been the source for several other equally detailed, complex and even nuanced stories in the past that are entirely consistent with the political fault lines that are part of the story regarding Osama bin Laden.
Those fault lines have been present from the beginning of the Obama presidency and were described in great detail last summer by the veteran Financial Times journalist Edward Luce in a lengthy feature story in that paper called “The Fearsome Foursome” (who knew that Luce the Brit was familiar with the great defensive line of the 60’s era Los Angeles Rams). His argument was that a small coterie of insiders had clustered around Obama the candidate and then again as President, creating a kind of dual power structure that operated in parallel alongside the official constitutionally generated structure known as the Cabinet which had, in Luce’s words, “virtually disappeared from view.”
The players have changed since then, of course. Only Valerie Jarrett, always primus inter pares among the Fearsome Foursome, remains from the original four Luce’s account centered on. Most importantly, Bill Daley is now the chief of staff, which suggests a shift away from the tight knit crowd that came from the days of the Presidential campaign. And, as well, at the time of the Luce story domestic politics was largely the focus while now the issue up for consideration is at the heart of American foreign policy and national security.
But the battles between the camps discussed by Luce have gone on, with Daley now up against Jarrett according to Insider. While Insider sees this division as a bureaucratic one, it is most likely a reflection of the very deep divisions within the Democratic Party itself between the politically correct, multicultural pseudo-left wing and the traditional establishment liberal wing of the Party. This ideological divide in the Party itself is a critical variable, I think, in explaining the hypothetical facts as provided by Insider.
According to Insider, the final decision to move ahead with the action to kill or capture OBL was made by CIA Director Leon Panetta and not President Obama. This amounts, Insider claims, to a “coup” and naturally that is the most explosive conclusion now driving the story around the blogosphere. If true it would undermine the claims being made by supporters of Obama now that the operation proves, finally, that Obama is indeed a decisive leader who deserves to be seen as both President and Commander in Chief.
I have pointed out here that that claim is in some dispute with some critics of his foreign policy suggesting Obama has wavered considerably leading to “falling between two stools” in the words of Walter Russell Mead. One unnamed source was quoted in the weeks leading up to the OBL operation as saying that Obama is so indecisive that he can hardly decide “if today is Tuesday or Wednesday.”
A long piece by veteran journalist David Wood in the Huffington Post detailed the hostility among the military towards Obama’s policies. Wood’s article centers on the debate over intervention in Libya, but his description of the tensions is remarkably similar to that discussed by Insider over the OBL operation.
Wood notes that:
The miscommunications and misunderstandings between [the White House and the Defense Department] cause frustration and anger, which sometimes even leads to policy paralysis, officials say.”
So it is certainly important consider the issues raised by the Insider coup allegation.
The problem, though, is that it is entirely possible for the facts provided by Insider to be largely true and for the conclusion that there was a coup, no matter how limited or temporary, to be untrue. In order for the claim of a coup to be true, Panetta would have had to have acted without appropriate legal or constitutional authority. In the words of Edward Luttwak, “a coup is by definition illegal.” That would mean that CIA Director Panetta and all who acted on his orders did so in violation of the domestic law described by Harold Koh as legalizing “precision targeting” of OBL. Koh notes this must be in the context of an armed conflict or an act of self-defense. Those are largely questions of international law that I leave aside. Instead I want to focus on the domestic side of Koh’s equation.
In my view, if one unpacks the Insider claims, it seems clear that Panetta was only carrying out precisely the authority he has as the director of an independent federal agency and that that authority was given to him by the President. Insider states that although he was told that the President was “overruled” in order to proceed with the operation, that in fact there was in his view no “outright overruling” because “there was no specific position from the president” that could be overruled.
But that is not quite right either, although I do not fault Insider for his failure to understand this – he is not a lawyer it seems.
The President himself said in his statement announcing the death of OBL that:
“[S]hortly after taking office, I directed Leon Panetta, the director of the CIA, to make the killing or capture of bin Laden the top priority of our war against al Qaeda, even as we continued our broader efforts to disrupt, dismantle, and defeat his network.”
He then went on to say:
“I determined that we had enough intelligence to take action, and authorized an operation to get Osama bin Laden and bring him to justice. Today, at my direction, the United States launched a targeted operation against that compound in Abbottabad, Pakistan.”
Based on these statements, there would appear to have been two orders given by the President, one to Panetta to find OBL and draw up a plan that would lead to his death or capture, and then second, a command that the plan be carried out.
When the CIA carries out such an operation in a covert manner it must be done in accordance with Section 413b of the Intelligence Authorization Act of 1991 (Title 50 of the US Code). (Scholars debate still, however, whether the CIA has clear rights to carry out “covert actions.” One such discussion described the CIA’s power to do so as having an “ambiguous foundation.”) Section 413b(a) requires the preparation of a “finding” by the President in order for the President to authorize such an action. Such an action cannot, according to Title 50, violate US domestic law or the Constitution. The term “covert action” is defined very broadly in Title 50 as:
an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly….
President Reagan put in place an Executive Order that is still in effect that prohibits assassinations. However, as Harold Koh’s remarks make clear, the Administration’s view is that targeting someone in an “armed conflict” or in self-defense is not an assassination. For the purposes of this discussion let’s assume that that is a defensible distinction. If so, then as long as such as the appropriate finding was prepared the actions of Director Panetta would have been legally and constitutionally valid under US domestic law.
(An additional layer of complexity here that I am setting aside is the use by the CIA of units like the SEALS or Delta that are part of the Department of Defense. See a discussion of that issue here. The issues that have to be resolved include whether the action is an act of war against Pakistan, whether or not by acting covertly the soldiers surrender their status to be treated if captured under the Geneva Conventions and whether the Secretary of Defense could in fact order such individuals into battle under such conditions.)
However, we do not know the precise contents of the two orders mentioned by the President. And we do not know the precise contours or boundaries of the orders and their relationship to any additional orders or findings. President Bush reportedly issued a finding to target bin Laden. There is no public record that that finding was withdrawn that I can find. However, we do not know if that finding was something which said, go get him, and just let me know when you got him, or whether it was along the lines of go find him, let me know where he is and then when you have a plan to get him, let me know so I can decide whether or not you can execute the plan.
[Update: The Los Angeles Times has reported as of Saturday May 7 that: "In June 2009, President Obama stepped up the hunt. In a memo to CIA chief Leon E. Panetta, he wrote: 'In order to ensure that we have expended every effort, I direct you to provide me within 30 days a detailed operation plan for locating and bringing to justice Osama bin Laden.'"]
These kinds of issues are commonly known as agency law questions. A principal, in this case the President, tasks an agent, in this case the CIA, to carry out certain tasks. The scope of authority granted to the agent is critical in determining whether or not the actions of the agent (and any sub-agents) are legitimate actions for which the principal is responsible.
If we assume that the US indeed allows targeted killings like that which was carried out this past weekend, and that such killings are not assassinations prohibited by the Reagan era Executive Order, then the question that has to be asked to determine if a coup took place is whether in fact Director Panetta acted outside the scope of authority given him by the President.
According to Insider, there was a vigorous bureaucratic battle between, on the one hand, Valerie Jarrett and, on the other hand, Leon Panetta acting in concert more or less with Hilary Clinton and Bob Gates. A plan to get OBL in some fashion (either a bombing or a special forces attack) was being developed that Jarrett, Insider alleges, wanted to delay, block or deep six. However, the President himself made fairly clear that he had at the outset of his presidency ordered Panetta to pursue the development of such a plan. Thus, there would appear to be nothing illegal about that activity.
Panetta is the director of an independent federal agency, which thereby draws power from both the Executive branch and the Congress. Panetta is appointed by the President but with the advice and consent of the Senate. Arguably, Panetta has power that derives from both political branches of the government and of course must answer to both. Jarrett is merely a special advisor to the President and thus enjoys a weaker form of legal authority, only that which the President explicitly gives her and, in addition, whatever would be reasonably and customarily required to carry out the tasks he assigns to her. Thus, no matter what policy objections she may raise, she had no authority to countermand the order given by Obama at the outset of his presidency to Director Panetta.
Jarrett, of course, as a close advisor to the President and his wife, carries considerable political clout that a savvy operator like Panetta would be sensitive to. This would be particularly important to him if in fact the first order from the President required him, as an agent of the President, to return for specific authorization to execute the operation as is suggested by the post-operation remarks of the President. Jarrett’s objections would likely have been viewed by Panetta as a proxy for the President’s own thinking.
Jarrett seems to have regularly raised what might be called the “Bay of Pigs” objection. Ever since the failed invasion of Cuba in the early days of the Kennedy Administration, Presidents have been fearful of the possibility that the CIA or other government agencies will lead them into an embarrassing foreign policy failure. Insider suggests that instead of pushing those objections aside, Obama let them fester thus creating uncertainty and anxiety on the side of the CIA and military.
But Insider then says explicitly that the President gave Panetta orders to proceed with the special forces option which, Insider alleges, the President and Jarrett thought would force the operation to slow down. Panetta, however, had already gone pretty well down the road with that possibility and so was ready to implement the action within a few days time. Now, of course, the President could have simply ordered the entire planning process to stop or just slow down. It appears instead that he did not want to appear to be doing so yet wanted to gain more time.
So Panetta continued to carry out his orders from the President, orders that the President explicitly acknowledged in his public remarks on Sunday evening. No sign of a coup yet. Apparently Panetta was convinced by Bill Daley at one point to secure additional authority for the plan but it is not clear that that was necessary. In any case that did not happen.
According to Insider, there was a final “abort order” relying on an excuse of bad weather. Insider says the order came from “Valerie Jarrett’s office.” However, her office has no authority to issue an order that countermands a Presidential order. So if that happened, Panetta would be within his rights to ignore it. It would have no more weight – legally – than if it had come from the head of the DNC.
Now Insider says that this order “was then followed up by President Obama.” But we really do not know what that means and I suspect Insider does not know either. If the Jarrett order had to be “followed up” then it confirms that it had no legal effect. Insider goes on to say that Jarrett stepped back at this point and offered no more resistance. But if her “abort order” or Obama’s follow up had in fact had the legal effect of aborting the operation and yet the operation was proceeding the President should have been asking for the head of Leon Panetta not Osama bin Laden.
Of course, if the excuse were weather, as Insider says, then it may have been a “delay” order not an “abort” order. And, in fact, there was a public statement to that effect from the White House after the mission was carried out. Whether the delay order was an attempt in fact to abort the entire process seems unlikely. Again, all the President had to do was withdraw the earlier explicit authorization already granted for the Special Forces action. A President who knows how to give such an order, as Insider acknowledges he did, also knows how to countermand it.
Insider’s final “fact” is that it seemed from what he heard that the President was unaware of the fact that the operation had begun on Sunday. Of course, if a weather related “delay” order were in effect then presumably the minute the “weather” had cleared the operation would be back on. We have no idea, and Insider does not seem to either, when that happened. Thus, there could be any number of explanations for why Obama took the time to play nine holes of golf that morning including the possibility that the initial expectation was that the weather had not cleared. In any case, one of them might simply have been that he wanted, understandably, not to be seen to be micro-managing the events (something that has haunted other Presidents) or perhaps, somewhat less understandably, he wanted to create some kind of distance from the actual events for political effect. There are, in other words, several possible explanations for the nine holes of golf that do not necessarily add up to a President being out of the loop.
“In my initial communication to you of these events I described what unfolded as a temporary Coup initiated by high ranking intelligence and military officials. I stand by that term. These figures worked around the uncertainty of President Obama and the repeated resistance of Valerie Jarrett.”
But Insider’s own account when taken together with existing law (at least as publicly interpreted by the Administration) and public statements of the President since the operation are all consistent with a conclusion that there was no coup d’etat, temporary or otherwise.
What did happen?
I think we do in fact have deep divisions over foreign policy inside the White House. At a conference recently held at nearby Stanford, Larry Diamond of the Hoover Institution noted, for example, that there are “deep, deep divisions” inside the Administration over how to handle the Arab Spring events. Now certainly the question of how to deal with OBL is closely related to how to deal with the Arab Spring. Ironically, in retrospect, the demise of OBL likely helps emphasize the dead end nature of his political argument to the Arab world. That would seem to militate in favor of anyone in government doing whatever he or she could to get OBL.
But it is entirely conceivable – though not necessarily politically defensible – that some in the Obama administration would fear, equally, the political consequences of failure.
One key weapon used in the policy battle, according to Insider, was the argument by Panetta that in essence the failure of not trying at all would be far greater than trying and not succeeding. This was reinforced by the risk that waiting longer increased the odds that bin Laden would get wind of US efforts and leave the Abbottabad compound for some unknown hiding place. In other words, if word got out that Obama’s and Jarrett’s delaying tactics had led to OBL fleeing the political damage would be incalculable. No doubt, Obama would be finished politically.
Thus, at the end of the day, what did Obama do if we accept Insider’s account? He attempted to have it both ways. He put in place the legal authority to let the operation move forward while tasking Jarrett to fight a scorched earth policy to place bureaucratic obstacles in the way of carrying out the operation. If the operation were pulled off the table altogether, then since the power to carry it out had been handed explicitly to Panetta, Panetta would get the blame. If it went forward and failed, then again Panetta gets the blame for a bad policy and Obama would have, as political cover, a loud and clear track record created by all of Jarrett’s vociferous interference with Panetta and the military indicating that he had problems with the plan all along.
There is nothing morally attractive about such an approach to wielding political power but one has to admire the craftiness of it. And that craftiness is something that seems to elude Insider and in fact seems to elude many in the Democratic party who do not agree with the policies of the Obama administration. They misjudge what is going on I think when they call the President indecisive, slow moving or seemingly uninterested in foreign policy issues. They do not seem to understand his style as part of the way in which Obama is, in fact, governing. To understand that we have to go back and consider not the deep divisions within the Administration, but more broadly those inside the Democratic Party.
Obama and Jarrett, as I have long suggested on this blog, are part of a relatively new demographic shift giving rise to a “multicultural pseudo-left” in the Party. This wing has its base in the race oriented and immigrant rights politics groups in the party such as SEIU rather than in the traditional urban industrial and rural white working class segments. It is not a surprise then that a Jarrett would be the one to raise concerns obsessively about the sensitivities of the Muslim world. For her this is a proxy for the political battles she and the south side Chicago milieu that nurtured Obama have been fighting for many decades.
But Obama decidedly did not get elected just by the elements in the Party who agree with the ideology of this multicultural wing. In fact, Obama often went to great lengths to hide or minimize his close ties to many in that wing, such as Bill Ayers or Jeremiah Wright. His subsequent appointments of some from that wing have largely been limited to domestic policy areas like environment (Van Jones) or education (Chris Edley).
It is the fact that he has no real purchase in the foreign policy arena through such p.c. appointments that has led to the kind of paralysis that we now see. Instead of having a clear line of authority that reflects the actual worldview of Obama we have a bureaucratic muddle. Insufficiently powerful to appoint a Jones-type to a top level national security post Obama is reduced to using Valerie Jarrett – who has no credibility whatsoever in this environment – and the appointment of second rate figures like John Brennan and Tom Donilon to key posts. The closest Obama has come to his own politically sympathetic appointment in this arena is probably Samantha Power of the NSC staff. And we see in the pathological Libyan situation how effective that has been.
Insider’s hypothetical account, then, is well off the mark when he contends that the bin Laden operation required a coup but he nonetheless paints a persuasive picture of a dangerously troubled political situation inside the highest levels of the Obama Administration.