The notion that any presidential administration or Executive Branch agency can keep secret official interpretations of the law is indefensible. A few members of the United States Senate and House of Representatives understand this and are pushing to find out information about President Barack Obama’s targeted killing program that the public has a right to know.
Democratic Senator Ron Wyden of Oregon, at a Sunshine Week event at George Washington University, declared, “Every American has a right to know when their government believes it has a right to kill them.”
He highlighted how he had worked for the past two years to obtain information on the legal basis for targeting and killing alleged terror suspects, both US citizens and foreign persons, and had submitted at least seven requests for information. Access to documents, which he had a right to read as a lawmaker (especially one on the Senate Select Committee of Intelligence), was obstructed while, at the same time, Obama continued to talk about valuing transparency and openness in government. Only when the administration needed to confirm a nominee did senators have power to force documents to be provided.
Wyden said he intends to try and have a “significant portion” of the Office of Legal Counsel opinions on when the US can legally authorize targeted killing operations released to the public. He does not accept the argument in favor of secrecy that asserts the legal interpretation is intertwined with details of secret operations. After reading them, “It’s pretty clear now they involve the law.”
The senator put the need for the official interpretation of the law to be made public into perspective:
If the CIA or the NSA interprets a law in an unusual fashion, it might well stay secret for years and that is what has happened in the past. If you look at the scandals of the ’60s and ’70s, the spying scandals as well as Iran-Contra, the warrantless wiretapping and coercive interrogation programs of the past decade—Much of that involves officials secretly deciding that the law didn’t mean what most people thought it meant, and, in order to prevent mistakes and abuses from occurring, I believe that Congress and the public have to insist that the Executive Branch’s official interpretation of the law be publicly known.
People in the Executive Branch, he suggested, are “worried that providing the documents” may set a precedent “that would undermine the president’s ability to get candid legal advice.” That concern is not valid because what senators and those in the public are seeking is the official policy that is being relied upon to justify and authorize decisions made in secret operations.
He noted the Obama administration still refuses to provide a list of countries where “lethal force has been used.”
Rep. Barbara Lee (D-CA) and other representatives sent a letter to Obama calling on him to release, “in unclassified form, the full legal basis of Executive Branch claims” around: killing targets without geographical limits; “high-level” officials with the authority to approve kill lists; the definition of whether capture is “feasible”; the meaning of “imminent threat;” the “suggestion that killing American citizens and others would be legitimate ‘under the Authorization for Use of Military Force and the inherent right to national self-defense.'”
The letter stated:
Authorizing the killing of American citizens and others has profound implications for our Constitution, the core values of our Nation, our national security and future international practice. The Executive Branch’s claim of authority to deprive citizens of life, and to do so without explaining the legal bases for doing so, sets a dangerous precedent and is a model of behavior that the United States would not want other nations to emulate.
Transpartisan support is building. David Keene, former chairman of the American Conservative Union and David Cole, legal affairs correspondent for The Nation, penned a column for the Los Angeles Times where they addressed the “crucial importance of transparency in government, especially when the president claims the power to kill [Americans] without charges or trial, by directing the launching of a remote-control drone.”
Keene and Cole mentioned eleven memos the Justice Department has drafted but refuse to release, even in redacted form, and demanded the president inform the public of the “ground rules that govern his claimed authority to have Americans killed.”
What is the assumed rationale behind the secrecy? I was confronted with it yesterday when I appeared on Huffington Post Live for a segment on Obama and transparency. Marcy Wheeler of Emptywheel.net, Trevor Timm of the Freedom of the Press Foundation and I all were invited to lob criticisms at former National Security Council flak Tommy Vietor, who would try and address them.
Continuing to carry water for the Obama administration (even though he said multiple times he no longer works for the administration), he talked about drones:
I worked in national security issues mostly. So a lot of the information I was dealing with was sensitive or classified or could jeopardize certain things. The primary concern we had was sources and methods and what that means is, if someone publishes something that says according to intercepted emails, that the individual’s emails we just intercepted—be they some member of Al Qaeda—that they would then know.
Drones a decade ago were cutting edge, very secret technology. We’ve come a long way in a decade. There used to be a time when administrations didn’t even talk about their use in hot battlefields like Afghanistan. So what I guess I’d tell people to look at is look at the way drones were discussed in 2008, compared to now. Take a look at speeches by Harold Koh or Eric Holder, where he talked about the targeting of US citizens. Take a look at remarks by John Brennan made at the Wilson Center where he talked in great detail about the targeting and criteria and processes the administration used to target al Qaeda members. Also, the administration has declassified the fact that drones take lethal action, they take kinetic strikes, in Somalia and Yemen. That used to be secret.
Barack Obama never said I will livestream from the Sit Room. The PDB [presidential daily briefing] will be on my website every day. Right, there are sensitive deliberative counterterrorism discussions that should remain secret because we don’t need people on the other side of those discussions to know who is being targeted, how, when, where and why…
Here is where I interrupted Vietor to tell him that nobody is asking the president for a “livestream” so not only is it absurd to suggest this in order to deride open government advocates but it is also a red herring.
The fact that there is more information known now than five years ago is not a legitimate defense for keeping official legal interpretations secret. It is not even a legitimate defense for not releasing information on the killings of US citizens Anwar al-Awlaki, Samir Khan and Awlaki’s 16-year-old son, Abdulrahman al-Awlaki. They are dead, the operations should have little bearing on the success of current operations and there’s a public interest in seeing documentation on what led government to decide it had the authority to kill these specific individuals or what the official reaction was after Khan and Abdulrahman were killed when they were not reportedly supposed to be targeted.
Speeches by high-ranking officials are not an acceptable substitute for transparency. In each case, the speeches have only raised more questions that may have never been asked if the public was able to see the legal basis as officially drafted for use by the president to give him the authority to kill.
Also, nobody is asking for suspected terrorists’ emails. The Obama Justice Department is not fighting the American Civil Liberties Union (ACLU) in court over the release of documented communications between leaders of Al Qaeda. They want the legal basis and some details around the criteria for putting individuals on to the secret kill list.
Vietor’s comments are similar to remarks made by Democratic Senator Dianne Feinstein of California, who was incensed by the fact that Wyden and a few other senators wanted the reauthorization of the FISA Amendments Act, a law that legalized President George W. Bush’s warrantless wiretapping program. Wyden sought the release of FISA court rulings for reasons similar to the reasoning behind his quest to have targeted killing memos released.
Feinstein concocted this idea that Wyden and others wanted to make public the names of people subjected to National Security Agency (NSA) surveillance. She suggested that what the senators trying to reform the law wanted to do is really destroy the program so it would no longer be an “intelligence tool” available. This is no different from Vietor’s comments that rest upon the unfounded fear that information not even being sought will somehow become public. In most cases, the only reason any of this information will become public is if spokespeople like Vietor anonymously provide this information to members of the press.