White House to reveal legal reasoning on killing of U.S. citizen Awlaki

Now the administration is poised to take its case directly to the American people. In the coming weeks, according to four participants in the debate, Attorney General Eric Holder Jr. is planning to make a major address on the administration’s national-security record. Embedded in the speech will be a carefully worded but firm defense of its right to target U.S. citizens. Holder’s remarks will draw heavily on a secret Justice Department legal opinion that provided the justification for the Awlaki killing. The legal memorandum, portions of which were described to The New York Times last October, asserted that it would be lawful to kill Awlaki as long as it was not feasible to capture him alive—and if it could be demonstrated that he represented a real threat to the American people. Further, administration officials contend, Awlaki was covered under the congressional grant of authority to wage war against al Qaeda in the wake of 9/11…

The calls for transparency in discussing the Awlaki strike were batted away at first. But behind the scenes, several prominent lawyers in the national-security bureaucracy began lobbying their colleagues and superiors for some degree of disclosure. Among them were Jeh C. Johnson, the Defense Department general counsel, and Harold Hongju Koh, the State Department legal adviser. The national-security “principals” quickly divided into camps. The CIA and other elements of the intelligence community were opposed to any disclosures that could lift the veil of secrecy from a covert program. Others, notably the Justice and State departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation. Among the proposals discussed in the fall: releasing a “white paper” based on the Justice memo, publishing an op-ed article in The New York Times under Holder’s byline, and making no public disclosures at all.

The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. David Petraeus, the new CIA director whose agency had been wary of too much disclosure, came out in support of revealing the legal reasoning behind the Awlaki killing so long as the case was not explicitly discussed. Petraeus, according to administration officials, was backed up by James Clapper, the director of national intelligence. (The CIA declined to comment.) The State Department, meanwhile, continued to push for fuller disclosure. One senior Obama official who continued to raise questions about the wisdom of coming out publicly at all was Janet Napolitano, the Homeland Security director. She argued that the calls for transparency had quieted down, as one participant characterized her view, so why poke the hornet’s nest?