Sen. Ron Wyden

(update below)

Ahead of the confirmation of Deputy National Security Advisor John Brennan to the position of CIA director, US Senator Ron Wyden of Oregon has sent a letter to Brennan asking him to provide Congress access to “secret legal opinions outlining the government’s ability to target and kill Americans believed to be involved in terrorism.”

Wyden, who serves on the Senate Select Committee on Intelligence, by law is supposed to provide oversight and have access to classified legal opinions, but, as he shares, the Obama administration has refused to provide him access to a copy of secret legal opinions for targeted killings:

…I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch’s understanding of the President’s authority to kill American citizens in the course of counterterrorism operations. Senior intelligence officials have said publicly that they have the authority to knowingly use lethal force against Americans in the course of counterterrorism operations and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions, and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves…

Wyden explained that the decision by the Obama administration to claim intelligence agencies may kill American citizens while at the same time refusing to provide Congress with access to all legal opinions explaining the administration’s understanding of the authority is “alarming and indefensible.”

…There are clearly some circumstances in which the President has the authority to use lethal force against Americans who have taken up arms against the United States, just as President Lincoln had the authority to order Union troops to take military action against Confederate forces during the Civil War. But it is critically important for Congress and the American public to have full knowledge of how the executive branch understands the limits and boundaries of this authority so that Congress and the public can decide whether this authority has been properly defined and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations. I have an obligation from my oath of office to review any classified legal opinions that lay out the federal government’s official views on this issue, and I will not be satisfied until I have received them. So, please ensure that these opinions are provided to me, along with the other members of the Senate Intelligence Committee and our cleared staff, and that we receive written assurances that future legal opinions on this topic will also be provided… [emphasis added]

Wyden also criticized the fact that he has been “asking for over a year for the complete list of countries in which the intelligence community has used its lethal counterterrorism authorities.” The “intelligence community” has refused to provide a complete list.

…[E]very member of the Senate Intelligence Committee should know (or be able to find out) all of the countries where United States intelligence agencies have killed or attempted to kill people. The fact that this request was denied reflects poorly on the Obama Administration’s commitment to cooperation with congressional oversight…

What this indicates is the Obama administration and US intelligence agencies could be engaged in any number of “counterterrorism” operations in any number of countries and they could be assassinating people extrajudicially in those countries. The Obama administration and intelligence agencies will not inform Congress on the extent of such operations, even though under law they are supposed to keep Congress informed.

Wyden informed Brennan that in December 2010 he and then-Senator Russ Feingold of Wisconsin wrote a “classified letter to the Attorney General regarding the interpretation of a particular statute.” He has yet to receive a response from the Justice Department. It is yet another example of the Executive Branch obstructing congressional oversight.

The government under Obama has fought efforts by the American Civil Liberties Union and New York Times to have the legal basis for the targeted killing program released under the Freedom of Information Act (FOIA). On January 2, a judge mostly dismissed both a lawsuit brought by the ACLU and the Times and concluded, “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”

In 2008, Sen. Russ Feingold challenged “secret law” being created and reinforced by the administration of President George W. Bush:

…The notion of ‘secret law’ has been described in court opinions and law treatises as ‘repugnant’ and ‘an abomination.’ It is a basic tenet of democracy that the people have a right to know the law. In keeping with this principle, the laws passed by Congress and the case law of our courts have historically been matters of public record. And when it became apparent in the middle of the 20th century that federal agencies were increasingly creating a body of non-public administrative law, Congress passed several statutes requiring this law to be made public, for the express purpose of preventing a regime of ‘secret law.’…

He spoke out against secret law created by the FISA court because the court’s interpretations of FISA law “governs the government’s ability in intelligence investigations to conduct wiretaps and search the homes of people in the United States.”

At the end of the year, Sen. Jeff Merkley of Oregon and Wyden challenged the continued practice of keeping FISA court rulings secret and tried to pass an amendment that would have made them available to the public in some form. Senate Intelligence Committee chairwoman Dianne Feinstein contended there is no secret interpretations of the law and hysterically argued passing the amendment as part of the reauthorization of the FISA Amendments Act could cause the destruction of a critical government surveillance program.

It is tiresome to repeat but the point should be made once again: if Bush was president, there would be loud protest from liberal groups about how the president was establishing secret law.

*

Brennan is unlikely to provide any meaningful response. That does not mean the letter is not significant. It clearly shows how the Obama administration is preserving secret law.

The administration is fighting to keep the power to act as judge, jury and executioner and kill anyone the president deems to be a terrorist threat without independent judicial review completely concealed. They are going to great lengths to prevent information on what domestic and international laws make the program legal by fighting in court and completely ignoring a US senator trying to do his job. This means there is currently no meaningful oversight whatsoever on this program. And this is a power they were concerned about giving to Mitt Romney but in the hands of Obama they seem to think it is completely ethical to be this secretive.

Without protest from the public or intense scrutiny from the press and civil society organizations, the Obama administration is unlikely to stop hiding the legal opinions from Congress and the public because the secrecy affords his administration the luxury of carrying out operations in any country at any moment in secret without having face the possibility of being constrained by law or stalled by politics.

Update 

This writing from Pentagon Papers whistleblower Daniel Ellsberg provides some insight into why the Obama administration might find it acceptable to not share secrets with members of Congress, who are supposed to have access:

…[I]n the national security bureaucracy in the executive branch (and now, regrettably, the intelligence committees of Congress as well), the secrecy “oaths” (actually, agreements, conditions of employment or access) have the same psycho-social meaning for participants as the Mafia code of omertà, with the difference that the required “silence to outside authorities” forbids truthful disclosure not to the state or police but to other branches of government and the public.

To be sure, the sanction for telling embarrassing Executive secrets to congressional committees that control the budget or to voters through the media is not gang-style execution or physical retaliation on one’s family. But it doesn’t have to be, to be comparably effective. For President’s Men — a prized self-image throughout the national security bureaucracy — the prospective loss of all clearances amounts to social death. (Recall the public stripping of J. Robert Oppenheimer’s clearances in 1954, from which he is said never fully to have recovered psychologically.) Moreover, in this field these feelings of dissolution of trust and social ties are amplified by the foreseeable conclusion in the larger society — however unjustified — that in breaking secrecy you have proven unpatriotic, and that you have deliberately or inadvertently risked or sacrificed the security of your nation and perhaps the lives of fellow countrymen…

Read the full paper on secrecy and whistleblowing here.