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“You win. You lose. Let’s have lunch.”

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...

Memo to DOD: State Practice in NATO Conduct of Libya Operations?

Secretary of Defense Leon Panetta delivered a speech Friday at a NATO air base in Italy in which he praised NATO operations in Libya, reports the Wall Street Journal; Panetta delivered his remarks standing in front of a US surveillance drone.  I myself am relatively agnostic on the Libyan conflict as such.  However, something I should very much like to see...

Secret DOJ Memo on Awlaki Targeting, and NYT Public Editor on Policy-by-Leaks

I’m traveling and can’t stop to comment, but check out Charlie Savage’s New York Times story describing the secret DOJ memo, reportedly principally authored by David Barron and Marty Lederman, that provided the justification for putting Anwar Al-Awlaki on the targeting list in the first place.  Crucial reading on the targeted killing and drone debate. One thought, however. As Jack Goldsmith and...

The Case Against Corporate Aiding and Abetting Liability Under International and Federal Common Law

Professors Samuel Estreicher, John McGinnis, Michael Ramsey, Mark Weisburd, Ernest Young and myself, in partnership with the National Association of Manufacturers, filed a brief amicus curiae today in Doe v. Nestle, a Ninth Circuit Alien Tort Statute case. In the wake of the Second Circuit's decision in Kiobel, but also the DC and Seventh Circuit decisions, the question of whether and...

More on Releasing the Awlaki OLC Opinion

Jack Goldsmith and Benjamin Wittes have been arguing for several days now at the Lawfare blog that the Obama administration should release either the Justice Department opinion approving the Al-Awlaki attack, suitably redacted, or some statement that puts out in some detail its legal reasoning.  The Washington Post has evidently read those posts closely, as it comes out today with a strong editorial endorsing the same thing.  I broadly agree with these arguments. I am equally concerned, however, with something that both Goldsmith and Wittes raised in their posts, viz., the increasing absurdity of a system of “covert” action in which, as the ACLU’s Benjamin Wizner put it in an amusing exchange with the White House counterterrorism adviser John Brennan at Harvard Law School a few weeks ago, they must be not be acknowledged though we can read about them in the newspaper.  The problem is that this eventually goes from amusingly absurd to de-legitimating.  It is amusing so long as the operations are successful — the Awlaki killing, the Bin Laden raid — and the (still illegal) leaks to the press are all about taking credit. It turns into something a lot less fun when something goes bad, as something inevitably will in operations of this kind, and these same extra-legal channels of wink-wink-nod-nod are used as parties try to deflect blame, put it on someone else, utilize press leaks to shift responsibility: this is not accountability, finally, it’s a natural but deeply flawed way of avoiding true accountability.  It involves informal mechanisms for taking credit when something good happens, and offloading it on someone else when something bad happens.  It’s a bad, but unfortunately tempting, idea when the news is good and when the news is bad.