On October 28, 2015, in an article titled: “How 4 Federal Lawyers Paved the Way to Kill Osama bin Laden,” the New York Times reported the measures that would be taken during the mission to enter Osama bin Laden’s compound in Pakistan was vetted through four Obama administration lawyers to ensure the legality of any and all outcomes. In this article, Charlie Savage reports that Stephen W. Preston, Mary De Rosa, Rear Admiral James W, Crawford III, and Jeh C. Johnson “worked in intense secrecy,” even conducting their own research; unbeknownst to then- Attorney General Eric Holder. Understanding that things could go badly, these memos would serve as support for the legal rationale of the mission itself.
The scope of the combined memos covered every aspect of the mission, from the breach of Pakistan’s sovereignty-which they decided was necessary to maintain covert integrity, up to and including the eventual decision to kill Osama bin Laden and apprehend no others, and how to properly bury his remains. Although they agreed on the justification to delay congressional notification, they soon learned that then-CIA director Leon Panetta had already broken the secrecy and the order of the White House by notifying several members of congress about the plan. Ultimately, they built their framework on the congressional authorization to use military force against perpetrators of the Sept. 11 terrorist attacks. Savage reports Stephen W. Preston said, “We should memorialize our rationales because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly.”
The issues addressed in this article are similar to those surrounding drone strikes; significant time and effort is invested in intelligence gathering, planning, and logistics. For that it seems there is little controversy or contention. What appears to be most controversial, however, is the intense secrecy and lengths to which the executive branch has hashed out every aspect of the mission and to decidedly assassinate Osama bin Laden as the goal of the mission itself. The question then is: Were these lawyers assembled to provide a strategic plan to cover the Obama administration’s assets? Or, were they assembled to allow the executive branch an opportunity to weigh out the rule of proportionality in the style of the Obama administration’s new approach to combating terrorism?
First, to dismiss legality as a strategic asset is-in my opinion- careless. I believe that for far too long the government has asked for forgiveness rather than permission from the people, applying the rationale that we all sleep better at night for the secret missions of spies and assassins; what the people don’t know, CAN hurt them so it best not to tell. Contemporary society is far more educated and highly motivated to hold the government accountable for any and all actions that may disrupt the growth of the economy and the status of foreign trade. This is, after all, a nation build on capitalism and entrepreneurship. However, to accept in blind-faith that President Obama brings a kinder and gentler arsenal to the war on terror- an executive branch dream team- by painstakingly weighing out the tenets of international law, human rights, and wartime protocol before battling any combatant is perhaps accepting a too neatly wrapped gift.
Maybe the answer to both questions is yes, I certainly do not believe it is no, but I believe there are degrees to each yes answer. It always seems easier to evaluate, analyze, re-assess, and develop alternative strategies after the fact. This is done daily by experts in their fields, and in the media for every incident act towards, or reaction to a combatant-whether home grown or foreign. However, in this case it appears that the experts were tapped prior to an incident act towards a combatant for the purposes of preparing a strategic plan of action and the legal justification to address the reaction, analyses, and questions of alternative avenues that were sure to take place when the mission was complete.
At face-value the administration’s plan of convening a four member secret panel, within the executive branch itself, to prepare “sealed” memoranda addressing the legal scope of a military mission appears intellectually prudent and thoughtful from a humanitarian perspective, but I feel we must always be vigilant scholars and continually seek to understand the deeper and more critical motivators of such intense preparations. While this article does provide some insight to understanding the motivators, it certainly does not pry too much. Rather it mostly teases my curiosity and leaves me driven to know “the rest of the story,” which will be available in book form soon. Maybe that was the point.