The Other McCain

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Obama Administration’s Top Legal ‘Experts’ Pwned by Blogger in Australia

Posted on | March 11, 2013 | 18 Comments

Guest Post by “Badger Pundit.”

Illustrating Glenn Reynolds’s “Army of Davids” observation about how the internet enables ordinary but competent people to beat Big Media, Big Government, and other goliaths which formerly enjoyed a near-monopoly over public policy debate even if lacking in competence, back in 2008 an American blogger, Dwight Sullivan, pwned all the attorneys and Justices involved in a U.S. Supreme Court case about the constitutionality of a state executing a criminal defendant for raping a child. After the Court ruled unconstitutional the death penalty for child rape, in part because the federal government (supposedly) does not authorize it, Sullivan pointed out in a blog entry that both the Congress and the President had recently authorized the execution of members of the military who commit child rape. The Court ended up modifying its opinion to correct the error Sullivan pointed out.

Meet Harvard law professor David Barron and Georgetown law professor Martin S. Lederman, the most recent legal “goliaths” to be felled by a blogger:

David Barron

Martin S. Lederman

Barron is graduate of Harvard Law School. Even more impressive, Lederman is a graduate of Yale Law School. Both have impressive professional accomplishments, which together with their contacts within the progressive legal community in 2009 won them high legal posts in the Obama Administration. But even these highly credentialed law professors — Obama’s best and brightest in the field of constitutional law — have now been pwned by law professor blogging from Australia.

As proof, consider this long article published yesterday in the New York Times addressing the legal work that went into the Administration’s decision that it had the constitutional authority to assassinate via a drone strike, rather than capture, a non-combatant U.S. citizen located in a foreign country (i.e., someone who though perhaps plotting harm against U.S. interests, is not presently engaged in an attack). As the article recounts, once the Administration developed an active interest in killing Anwar al-Awlaki (a U.S. citizen hiding in Yemen) in the aftermath of the attempted Christmas Day bombing in 2009, in early 2010 Barron and Lederman put together a memo concluding that there was no legal obstacle to using a drone strike to kill al-Awlaki (at least if he proved difficult to capture).

The main commentary so far on this article, for example, by Ann Althouse and Glenn Reynolds, has focused on the hypocrisy angle. Barron and Lederman found themselves in the uncomfortable position of arguing that the war power of the President is broad enough to justify killing rather than capturing a U.S. citizen who had not even been charged with a crime.This position was uncomfortable because just two years earlier they had published more than 250 pages in the Harvard Law Review (see here and here) attacking as unduly broad the Bush Administration’s view of the war power used to justify mere enhanced interrogation (leaving no permanent harm) of captured terrorists who were citizens of foreign countries. As Althouse puts it: “Karma’s a bitch!” She adds: “isn’t it amusing to picture them — somewhere in the secret passageways of power — flop-sweating and frantic over the realization Oh, my God, we’re John Yoo!?”

But beyond the hypocrisy, it should not escape notice how these two towering figures of the progressive legal community were, in their actual analysis of the relevant law, pwned by a blogger. The New York Times article reveals that after completing a legal memorandum which concluded that “Mr. Awlaki was a lawful target” for assassination, Barron and Lederman “grew uneasy . . ., particularly after reading a legal blog that focused on a statute that bars Americans from killing other Americans overseas.” As Marcy Wheeler and others have pointed out, although the New York Times did not credit him by name (or, apparently, even interview him), the person who wrote the blog which made Barron and Lederman uneasy is Kevin Jon Heller, a law professor in Australia.

Kevin Jon Heller

Even though one would think lawyers in America would be somewhat more familiar with American law than a law professor in Australia, it was left to Heller to point out that there’s a statute protecting U.S. citizens from being killed in foreign countries by other U.S. citizens. Just a day after reading in the Washington Post that al-Awlaki had been added to the CIA “hit list” despite being a U.S. citizen, on April 8, 2010, Heller published a blog post, “Let’s Call Killing al-Awlaki What It Is — Murder,” which pointed to the legal problem presented by 18 U.S.C. 1119(b), which reads:

A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.

In reaction to Heller’s blog post (and other concerns), the New York Times article reports, Barron and Lederman devoted months of additional work to the matter of whether al-Awlaki could lawfully be killed, adding dozens of pages to their analysis in an attempt to get around the problem raised by Heller (and other concerns). But based on Professor Heller’s recent analysis of the leaked “White Paper” which summarized the analysis of Barron and Lederman, it does not appear that they ever focused on the key issue — the problem under 18 USC 1119(b) presented by the CIA, which is not part of the military, killing a U.S. citizen in a foreign country.

It appears that Professor Heller is continuing to pwn Barron and Lederman. Just this morning he published a blog post which is highly critical of this key omission in their analysis: “Why the ‘Public Authority’ Defense Does Not Work for the CIA.” The blog post seems quite thorough, and one looks forward to hearing what current Administration officials, and Barron and Lederman (who have returned to teaching), have to say about it. A snippet:

al-Awlaki was killed by the CIA, not by the US military. The White Paper does not discuss whether a CIA drone operator would be entitled to a public-authority defense in a prosecution under the foreign-murder statute; indeed, all of the sources cited in III.C regarding the defense (p. 14) — three classic criminal-law treatises and an old state case — claim that the laws of war entitle a soldier to kill the enemy. They say nothing about the right of anyone else to kill.

So would a CIA drone operator be entitled to a public-authority defense? I don’t see how. . . . I simply fail to understand how the US could argue that a CIA drone operator has the right to kill an American citizen abroad, even one who otherwise qualifies as a legitimate target.

* * *

Because CIA drone operators do not possess the combatant’s privilege, a drone operator does indeed violate federal law when he kills an American citizen abroad — namely, the foreign-murder statute. That is true even though the exact same attack would not be criminal if it was carried out by a drone operator working for the US military. The difference is precisely one of public authority: the military drone operator has it (the combatant’s privilege); the CIA drone operator does not.

One wonders whether the country is in the best of hands if we have to rely on a law professor in Australia to point out to top lawyers in a progressive Administration statutes put in place to limit the ability of Americans to kill each other outside America.

Then again, Professor Heller is no slouch. From a review of his biography, perhaps one should not be surprised that Heller can run circles around Barron and Lederman — for example, he has twice as many advanced degrees (four) as Barron and Lederman have combined, two of them from American universities (an M.A. from Duke and a J.D. from Stanford). Perhaps the Obama Administration needs to cast a wider net in its staffing decisions.


18 Responses to “Obama Administration’s Top Legal ‘Experts’ Pwned by Blogger in Australia”

  1. Mermaz
    March 11th, 2013 @ 7:36 am

    RT @smitty_one_each: TOM Obama Administration’s Top Legal ‘Experts’ Pwned by Blogger in Australia #TCOT

  2. Cheesecakecrush
    March 11th, 2013 @ 8:00 am

    According to the Obama administration, we are to treat enemy combatants who are not citizens of the US BETTER than we are to treat US citizens.

    Now we know where his priorities lie. He’s a traitor.

  3. Kevin Jon Heller
    March 11th, 2013 @ 9:03 am

    I appreciate the post, but I want to make clear that although I strongly disagree with the White Paper and imagine that I would be no more convinced by the 63-page memo, I have great respect for both David and Marty. I have known Marty for a long time and consider him a friend; I hope that he thinks the same of me.

  4. Bob Belvedere
    March 11th, 2013 @ 9:13 am

    You see to believe that Barron and Lederman give a hoot about obeying the law. Like all good Leftists, they do not believe in any standards.

    They do not believe in Law And Order as traditionally understood. These two are believers in the ‘by any means necessary’ doctrine. All they were seeking to achieve with their analysis was silence the critics and, hopefully, deceive a good number of them.

    To be a proper, acceptable Leftist, one must reject Absolute Truth, Morality, Tradition, Prudence, and Right Reason.

  5. Scribe of Slog (McGehee)
    March 11th, 2013 @ 9:18 am

    The sheer volume of malum prohibitum law and the many-layered ways in which they contradict one another make it virtually impossible for anyone to know what is and what isn’t punishable, until such time as five or more judges digest their breakfast all over it and tell us.

    That doesn’t sound like a republic to me.

  6. Badger Pundit
    March 11th, 2013 @ 9:51 am

    RSM — I sent you an e-mail; please address ASAP.

  7. JohnInMA
    March 11th, 2013 @ 10:04 am

    Just more evidence that our legal and regulatory system is so overwritten and jammed packed with an every increasing number of words, laws, and rules, that even two Ivy League geniuses blessed most likely with large, taxpayer funded staffs, miss the obvious. Either that or they simply are blinded by ideology, and missed it even when right in front of their eyes. Either way, it sure doesn’t look good for them…..

  8. WJJ Hoge
    March 11th, 2013 @ 10:13 am

    Perhaps Mitt Romney could share some of his binders with the White House HR shop.

  9. G Joubert
    March 11th, 2013 @ 10:22 am

    I’m sure one thing that has them spooked bigtime is the prospect of murder prosecutions of these self-same Obama administration officials –including Obama himself– for the killing of Anwar al-Awlaki, by future administrations with future attorneys general with the political will to prosecute. There is no Statute of Limitations.

  10. G Joubert
    March 11th, 2013 @ 10:26 am

    But, then, there’s always the pardon power.

  11. Unsooper
    March 11th, 2013 @ 1:02 pm

    I believe that if the killing was authorized by the WH it is yet another “high crime” for which President Obama should be and could be removed from office. At least, I wish someone with any balls in Congress would add it to the list.

  12. Dai Alanye
    March 11th, 2013 @ 2:30 pm

    That the Obama administration engages in hypocrisy comes as no surprise. Indeed, hypocrisy is in daily use as one of their favorite tools.

    The al-Awlaki incident holds a bigger question, however. Are we engaging in war with militant Islamism or merely exercising long-range law enforcement?

    If the former, I see no reason for treating al-Awlaki any different from, for instance, Benedict Arnold, whom Washington would have gladly executed had he been able to get either his hands or a cannonball on him.

  13. Adjoran
    March 11th, 2013 @ 2:38 pm

    “Quite thorough”?

    The difference is precisely one of public authority: the military drone operator has it (the combatant’s privilege); the CIA drone operator does not.

    Not quite.

    These operations were “CIA-led” but the drone operators were military, part of the Joint Special Operations Command. CIA operatives often are the ones tracking targets, but the drones are not in their direct control.

  14. JeffS
    March 11th, 2013 @ 3:05 pm

    Military personnel on loan to a non-military agency (a routine event, and hence there are standard protocols for this) may not have their “combatant privileges” transferred with them, in the “support” versus “combatant” roles.

    Further, the CIA may well have their drone C2 system in place. It’s all done remotely, so changing control stations is only a matter of throwing some switches, and a Air Force drone operator in Nevada goes away, and in steps in an operator near Langley. It’s like playing a video game, I’m told, so you don’t need hardened grunts. You need geeks.

    The only thing that can’t be done remotely is the field support (maintenance, operations, munitions, site security, etc) that takes place from where ever the drone is launched. That could be done by contractors under the supervision of military personnel.

    So the chance that *civilian* CIA operators “pushed the button” is quite high.

  15. Steve Skubinna
    March 11th, 2013 @ 4:10 pm

    Seems pretty straightforward. Hire some foreign nationals and have one on call at all times in the drone control center. Locate the target, ask foreign dude to “push the big red button over there…”

    There. Then Obama can say “Let me be clear – no US citizen is violating US law.”

  16. Steve Skubinna
    March 11th, 2013 @ 8:38 pm

    Sorry. He might have considered you a friend before you wandered off the reservation. Remember, for progressives, all politics is personal. A progressive cannot respect a person with whom he disagrees.

  17. PatrickC
    March 11th, 2013 @ 10:08 pm

    Pharoah has given his orders. It’s now up to the court jesters to square them with the peanut gallery.

    And square that circle they will.

    You know, I remember when there was a Republican in the White House and the Press Corpse overdid its job. Nowadays I look at them and imagine The Won indulging in the occasional bit of necrophilia.

    OK. “Regular.”

  18. PatrickC
    March 11th, 2013 @ 10:11 pm

    Well, he’s far away, not an American, and he’s offering opinion that might affect The Won.

    He’ll simply not be addressed by the US press corpse.

    And The Won will go on assassinating American citizens.

    I wish I were John Yoo, this day.