09 Oct “You win. You lose. Let’s have lunch.”
09.10.11
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1 Comment
So concludes Philip Bobbitt, in an email comment to Ben Wittes, responding to his post on the question raised at Lawfare, here at OJ, and at Volokh, as well as in an opinion piece this morning by the New York Times public editor, Arthur Brisbane. Philip is criticizing the policy, as I put it earlier, of conducting “foreign policy-by-leak.” I won’t quote more of the comment here, but commend the whole thing to you at Lawfare.
Thanks Kenneth. When I saw the Charlie Savage story last night I immediately jumped over here to see what you were going to say about it. There were three things that struck me when reading the article:
(a) Who leaked this? Initially, it appeared to me as a half-measure to attempt to diffuse the fremescent calls for the memorandum’s release, while still attempting to placate a national security bureaucracy that does not want this information to be released at all. The Public Editor’s comments about manipulation are certainly apropos. If the Times can see the entire memorandum, what is the rationale for not allowing the general public? Ultimately, I don’t think this will quiet the calls for release one bit. I think it’s going to make them only grow louder.
(b) The authors. Wow! Marcy Wheeler of the Emptywheel blog has an important timeline for when and under what circumstances the memorandum was authored.
(c) The OLC memorandum explicitly relies on the Executive Branch’s view of the evidence against al-Awlaki. The legal reasoning will undoubtedly be interesting, but it’s the factual evidence that seems of real importance as to whether the legal rationale stands scrutiny and the arguments within the memorandum are made in good faith. The Reuters article earlier this week on how targets are selected and approved is a major aspect of this story and there should be as much pressure about releasing details about how that process works, as there is about seeing this memorandum.