Obama Shut Out Eric Holder From His Decision To Kill Bin Laden

And what that tells us about the decline of the government lawyer -- and the law itself -- in the context of national security.

The law and the country's chief law enforcer no longer matter when it comes to legality of the war on terror.

A handful of top government and military lawyers advised President Barack Obama on the legal complexities of killing Osama bin Laden. But the most powerful of them all, then-Attorney General Eric Holder, was left out of the deliberations.

In a front-page story published on Thursday, The New York Times' Charlie Savage offered the untold account -- excerpted from an upcoming book on the Obama presidency's military policy -- of the top-secret discussions that laid the legal framework for the Navy SEAL raid that killed bin Laden in May 2011.

Holder only found out about the deliberations a day before the raid, according to the Times. Thomas Donilon, a national security adviser to the president, seems to have made the unilateral call to exclude him.

Weeks before the planned ambush, the four attorneys -- CIA General Counsel Stephen Preston, National Security Council legal adviser Mary DeRosa, Pentagon General Counsel Jeh Johnson and Joint Chiefs of Staff legal adviser James Crawford -- each worked on discrete legal memorandums targeting specific aspects of the operation.

As options that would have resulted in more civilian casualties were ruled out, the lawyers eventually settled on a "unitary military incursion" -- the raid -- and reached the seemingly unanimous conclusion that there existed "clear and ample authority for the use of lethal force under U.S. and international law," according to an unnamed official quoted in the story.

Not pictured in this iconic photo: the lawyers who laid the legal groundwork for the raid that killed Osama bin Laden in
Not pictured in this iconic photo: the lawyers who laid the legal groundwork for the raid that killed Osama bin Laden in May 2011.

But this by no means sounds like a detached assessment of the facts and the law. Rather, we're told the lawyers confronted the legality of a mission "intending to kill bin Laden as its default option." Once that was settled -- and behind Holder's back -- "Obama later explicitly ordered the kill mission," according to officials.

The lawyers also divvied up addressing the legal justifications for moving forward with the plan without telling Congress, for what to do if bin Laden was captured alive, and for a burial at sea -- all objectives that appear consistent with the work of specific departments and agencies with a vested interest in bin Laden's demise.

Tellingly, Preston acknowledged the memos were needed "because we may be called upon to explain our legal conclusions, particularly if the operation goes terribly badly," according to an official.

But what if those very conclusions were manipulated to achieve the killing of bin Laden at all costs? Is that legal advice -- a neutral evaluation of the many potential factual scenarios and how the laws of war apply to them -- or pushing for a preordained outcome?

"Military lawyers often play a tricky pre-combat role in clarifying the rules of engagement and applying the laws of war to particular targets," Harvard law professor Noah Feldman explained in a Bloomberg View column responding to the Times article. "They need to be careful that they're actually applying the law -- not distorting it to achieve operational goals." 

When you throw in the fact that Obama specifically shut out his top lawyer, Holder, and the Office of Legal Counsel -- the Department of Justice arm that advises the president on the legality of executive policy -- there's reason to believe that the four lawyers who engineered the mission had a clear mandate to make it legal.

University of Chicago law professor Eric Posner, who has written extensively on international law, wondered whether freezing out "the entire Justice Department" was some sort of payback, especially since the Office of Legal Counsel had previously been "less than cooperative when the White House sought a legal rubber stamp for the Libya intervention in 2011."

"Has the OLC been demoted for its insubordination?" Posner asked.

To veteran national security journalist Marcy Wheeler, the fact Holder was left out of deliberations was no different from the time "Dick Cheney excluded John Ashcroft from key information about torture and wiretapping" during the George W. Bush administration. Should Obama be held to a lesser standard because bin Laden is one of the least sympathetic targets in American history?

As for the present state of DOJ's Office of Legal Counsel, Jack Goldsmith-- its former head under Bush who reportedly fought to disavow the administration's reviled "torture memos" -- offered the grim assessment that its relevance as an advisory body in national security matters is on the wane and may even be at its lowest point, even lower than during the Bush years.

Why this matters in the grand scheme of national security law transcends the object of Obama's kill order.

"No one's mourning for Bin Laden, and that's as it should be," wrote Feldman. "But the rule of law is made of many discrete, small legal judgments. Distorting those judgments when the stakes are high perturbs the force field of legal justice. That should be a concern, regardless of how repulsive the victim."

CORRECTION: A previous version of this article incorrectly stated the last name of the Office of Legal Counsel's former head. It's Goldsmith, not Goldstein.