In the wake of the government's secret legal rationale for the targeted killing of American citizens leaking to the press, President Obama has now twice vowed to bring more transparency to national security issues, and in particular, drone strikes. Yet since his two statements, his administration has instead moved to prevent more information from reaching Congress, the courts, and the public.
Expanding on his transparency pledge during his State of the Union, President Obama emphasized his willingness to change during a Google Plus “fireside chat” on February 14th. He responded to a question about the unaccountable CIA drone program and the secrecy surrounding it by saying:
“But what I think is absolutely true is that it is not sufficient for citizens to just take my word for it that we are doing the right thing. I am the head of the executive branch. And what we’ve done so far is to try to work with Congress on oversight issues."
While the initial white paper leak did force the administration to share with Intelligence Committee members two of its targeted killing legal opinions (of which there are reportedly nine more), the disclosure came with extreme caveats. As the New York Times reported, only tiny faction of the Senate was able to view them, and the two documents “were available to be viewed only for a limited time and only by senators themselves, not their lawyers and experts.”
Since then, the administration has not been “work[ing] with Congress on oversight issues” related to drone strikes, it's been actively trying to cut them off. The Times also reported that “rather than agreeing to some Democratic senators’ demands for full access to the classified legal memos on the targeted killing program, Obama administration officials are negotiating with Republicans” in an attempt to keep the legal opinions secret, while trying to avoid a potential filibuster of John Brennan’s nomination for CIA director.
President Obama’s efforts to perpetuate secret law are especially unnerving given his comments at the beginning of his answer to the same Google Plus question, when he claimed “just about every law that we pass, every law that we implement, we put online for everybody to see.”
Critically, he didn’t mention that he has kept interpretations of many of those laws secret, with its rationale on targeted killings of Americans only being the most stark example. His administration has refused to release classified interpretations of the controversial Section 215 of the PATRIOT Act and the warrantless wiretapping provisions of the FISA Amendments Act—both of which substantially affect Americans’ Constitutional rights. The administration also just concluded a secret legal review declaring the president "broad powers" to conduct pre-emptive cyberattacks against other nations.
In fact, even the number of classified legal opinions that exist is considered classified.
Secret law is an anemia to democracy; it's a disease President Obama has directly criticized in the past, yet as Marcy Wheeler documents, his administration has been even less forthcoming with secret legal memos than the Bush administration was during its second term. After Bush’s warrantless wiretapping and torture scandals, his Office of Legal Counsel at least “started provided Congress with even the most sensitive memos, whether or not they declassified them for public review.”
But President Obama said he would go even further that in his remarks in response to the Google Plus question about drone strikes on Americans: “Part of what I am going to have to work with Congress on is to make sure that whatever it is we’re providing Congress, that we have mechanisms to also make sure that the public understands what’s going on, what the constraints are, what the legal parameters are."
As Kevin Gosztola writes, “The Freedom of Information Act (FOIA) process is a mechanism the public (and press) should be able to use to understand what is going on with counterterrorism operations or, more specifically, the drone programs.” Yet in response to the ACLU’s FOIA lawsuit for the targeted killing legal memos and more information on drone strikes, the administration is still arguing to the Court of Appeals that it cannot even confirm or deny the drone program exists.
Since the white paper has become public, John Brennan has extensively discussed the drone program and targeted killing at his Senate confirmation hearing, and Rep. Mike Rogers told CBS Face the Nation that goes to the CIA every month to review drone strikes as part of his job as House Intelligence committee chairman. In the Alice-n-Wonderland world of US government secrecy, none of these facts seem to make a difference.
Of course, President Obama’s pledges and promises of more transparency are welcome, but his rhetoric needs to be followed up with concrete action. Until then, as lawyer and author Chase Madar wrote this week, “leaks remain an essential public service, and those who provide them deserve both gratitude and clemency.”
If you’d like to help bring more transparency to the US drone program, you can donate to the Bureau for Investigative Journalism’s “Naming the Dead” journalism project on our front page.