A Thousand John Yoos

Arcane legal theories interfered with the credibility and efficiency of the Obama administration and frustrated the soldiers trying to fight terror overseas.


Kill or Capture: The War on Terror and the Soul of the Obama Presidency, by Daniel Klaidman, offers a few interesting details about the president and the U.S. Joint Special Operations Command. According to Klaidman, "Law and politics so constrained Obama's ability to influence counterterrorism policy, it's easy to appreciate the lure of JSOC."

Indeed it is. Who wouldn't want to run a war with total authority and zero oversight? The president seems to feel entitled to such authority because he's "also a lawyer." As Klaidman explains, Obama "understood that in the shadow wars, far from conventional battlefields, the United States was operating further out on the margins of the law." So why not work to change the law? Clearly it's broken. Why not offer some photon of sunlight to a White House-run campaign of "targeted killings"? (Aside from leaks specifically designed for political gain.)

The real problem, in the president's view, was that the Bush Administration shunned the advice of lawyers, whose "finely grained distinctions and hair-splitting legal arguments could mean the difference between who would be killed and who would be spared." So the president presented a sweeping new framework to Congress to help him better execute the war on solid legal footing? No. Actually, Obama brought in more lawyers to better split hairs. "His administration seemed to view the involvement of lawyers in the formulation of nation security as a badge of honor -- evidence of its commitment to the rule of law." Only, that's the exact opposite of what the president is doing. The lawyers are there to circumvent law. The Bush administration relied on John Yoo. The Obama solution? More John Yoos. As many John Yoos as it takes.

Much of the narrative involves White House lawyers constructing elaborate rationales and circumstances under which the president can order triggers pulled or bombs dropped in countries with which we are not at war. State Department legal adviser Harold Koh, for example, "developed a theory of 'uniqueness versus fungibility'" in deciding who to kill.

Everyone cool with that?

Apparently, U.S. commandos aren't. "This was just the kind of legal nitpicking that drove the operators crazy. It was hard to imagine knife-in-the-teeth commandos asking themselves whether they'd passed the four-part Koh test on uniqueness versus fungibility before blowing a bad guy to kingdom come."

As Klaidman writes, the president "personally signed off on each kill or capture operation conducted in Yemen and Somalia." Whichever member of the Obama administration leaked this information probably wanted to evoke Eisenhower approving each U-2 flight over the Soviet Union. The difference, of course, is that Ike had a first-rate, well-honed military mind, and an appreciation for the risks associated with the missions. The present system seems a bit more like Johnson choosing bombing targets in Vietnam. The notion of a secret presidential kill list is odious enough, but from what experience, exactly, does Barack Obama draw from when deciding whether a mission is good or bad? How does he, or any president, maintain consistency in ordering lethal force against individuals?

The man who comes out best in Kill or Capture is Admiral William McRaven, commander of U.S. Special Operations Command. During one of his first briefings with special operations, Koh was "awed by McRaven's crisp efficiency. What a contrast, he thought, to the meandering academic meetings at Yale Law School, where he and his colleagues could spend six hours debating a single faculty appointment." Repeatedly in the book, McRaven appears with the solution to whatever problem the country is facing, and follows through.

It's very easy to blame the president (and I do) for our present, ill-conceived, unilateral, ad hoc world war, but at least he's flexing executive muscle. The real question is: Where is Congress? It seems they've abdicated even the pretense of oversight. What happens when we don't have a lawyer as president?