by Julian Ku
Fascinating inside baseball piece on the Obama Administration’s internal debate over war on terrorism policy. It features a struggle between the State Department (Harold Koh) and the Defense Department (Jeh Johnson) with the OLC (David Barron) playing referee.
The rift has been most pronounced between top lawyers in the State Department and the Pentagon, though it has also involved conflicts among career Justice Department lawyers and political appointees throughout the national security agencies.
The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.
I actually think the article overstates the differences somewhat. All the key players agree there is a war against Al Qaeda and that there is a power to detain and try Al Qaeda folks. The only question dividing them seems to be how to define a member of Al Qaeda, or supporter of Al Qaeda. Admittedly, this is a difficult question but it doesn’t seem to be a deep philosophical divide.