That is the difficult question with which former Attorney General Michael Mukasey grapples in the editorial pages of the Wall Street Journal. Surprisingly, he concludes that the answer is “yes.”
His evidence for this proposition is a bit scanty. For example, he makes the extremely implausible claim that “the operation contained a responsibility-escape clause:”
A recently disclosed memorandum from then-CIA Director Leon Panetta shows that the president’s celebrated derring-do in authorizing the operation included a responsibility-escape clause: “The timing, operational decision making and control are in Admiral McRaven’s hands. The approval is provided on the risk profile presented to the President. Any additional risks are to be brought back to the President for his consideration. The direction is to go in and get bin Laden and if he is not there, to get out.”
Which is to say, if the mission went wrong, the fault would be Adm. McRaven’s, not the president’s.
This seems like a willful misreading of the purpose of such a clause. Surely Mukasey is not so naive is to believe that a clause of this sort would have the slightest political value (quite the contrary) if the president were to cite it after the fact in an attempt to mitigate his own responsibility in the wake of a failed mission? Indeed even imagining such a thing seems like some sort of right-wing fever dream regarding the supposed tendency of “the left” (sic) to engage in preposterous legalistic arguments for political purposes. How could anyone bad enough at politics to try something like that get elected president in the first place anyway? (Besides through the devious workings of the liberal media conspiracy and the Illuminati of course).
Mukasey then goes on to cite the example of Dwight Eisenhower, who composed a famous letter in anticipation of the potential failure of the D-Day operation:
Our landings in the Cherbourg-Harve area have failed to gain a satisfactory foothold and I have withdrawn the troops. My decision to attack at this time and place was based upon the best information available. The troops, the air and the Navy did all that bravery and devotion to duty could do. If any blame or fault attaches to the attempt it is mine alone.
One is tempted — indeed I am tempted — to point out that in June 1944, Eisenhower was not the politician who ordered the attack, but rather the military commander who had been put directly in charge of the operation whose failure prudence required him to anticipate.