Tag Archives: secrecy

Obama and secrecy

By Christopher B. Daly 

Sadly, the Obama administration is continuing to drag its heels in releasing the rationale for its policy of killing people — including American citizens — with drones. No one is asking Obama to reveal any operational secrets. But every American, including every member of the Democratic Party, should demand the instant release of the policy, which is still being kept an official secret. If Obama and his team can find a justification for his policy under the U.S. Constitution and/or international law, so be it. I want to examine it and decide for myself.

What is intolerable is the idea that the president can assume the power to order executions without bringing charges, holding a trial, or offering any other safeguards. His policy, so far, is “trust me” — which is tantamount to repealing the rule of law and substituting personal power. He is taking on the role of the tyrant who says of his perceived enemies, “Off with his head!” Obviously, if George W. Bush did something like this, liberals would react with outrage. For the same reasons, Obama’s actions to date have been equally outrageous. The American people have not only a right but a responsibility to know what is being done in our name.

It doesn’t matter if the cause is just or if his intentions are good. If he operates outside the law, then he’s a tyrant.

Luckily, someone leaked the Justice Dept “white paper” about drone executions to NBC News. That is a description of the policy, not the policy itself.

Today’s Times has a good package of pieces, including:

–a triple-byline page 1 lead story, (dateline: SANA, Yemen),

–a double-byline analysis of the legal situation (in which the Times downplays its own FOIA suit), a note from the paper’s Public Editor,

–a full-blown expert debate,

–graphics, video, and more.

Source: The Long War Journal

Source: The Long War Journal

 

 

It should also be noted that many others are reporting on this (a hat-tip to the Washington Post), or suing over it (a hat-tip to the ACLU), or waging a political fight against the administration (oh, wait: no one is!).

 

This is not over.

 

 

Here is the main takeaway from the legal piece, which begins by noting that Obama rejected the Bush administration’s decision to shroud its torture policy in secrecy:

 

In the case of his own Justice Department’s legal opinions on assassination and the “targeted killing” of terrorism suspects, however, Mr. Obama has taken a different approach. Though he entered office promising the most transparent administration in history, he has adamantly refused to make those opinions public — notably one that justified the 2011 drone strike in Yemen that killed an American, Anwar al-Awlaki. His administration has withheld them even from the Senate and House intelligence committees and has fought in court to keep them secret, making any public debate on the issue difficult.

 

 

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Obama: Wrong on secrecy (NYTimes version)

imgres3No surprise: the New York Times, whose reporters filed a FOIA request in this case, agrees with me that the Obama administration has engaged in excessive secrecy around the legal rationale for its drone program.

Here’s the Times editorial:

Misplaced Secrecy on Targeted Killings

For years, President Obama has been stretching executive power to claim that the authorization to use military force against Al Qaeda gives him the unilateral authority to order people killed away from any battlefield without judicial oversight or public accountability — even when the target is an American citizen.

On Wednesday, a federal judge in Manhattan came down on the side of preserving secrecy regarding how this dangerous view of executive power gets exercised. Judge Colleen McMahon refused to require the Justice Department to disclose a memorandum providing the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki, in a 2011 drone strike in Yemen.

The decision came in response to a lawsuit for the memorandum and related materials filed under the Freedom of Information Act by The New York Times and two of its reporters, Charlie Savage and Scott Shane, and also a broader request under the act from the American Civil Liberties Union. We strongly disagree with Judge McMahon’s conclusion that she was compelled by a “thicket of laws and precedents” to deny access to the legal memo — prepared by the Department of Justice’s Office of Legal Counsel — and other documents that provided the legal and factual basis for the killings.

For starters, various government officials have spoken publicly about the American role in killing Mr. Awlaki and the circumstances under which the government considers targeted killings, including of American citizens. At President Obama’s nominating convention last summer, a video prepared by his campaign listed the killing of Mr. Awlaki prominently among Mr. Obama’s national security achievements.

Such a selective and self-serving “public relations campaign,” as the judge termed it, should have been deemed a waiver of the government’s right to withhold its legal rationale from public scrutiny. Moreover, disclosing the document would not have jeopardized national security or revealed any properly classified operational details. The ruling, which is inconsistent with the purpose and history of the information disclosure law, richly deserves overturning on appeal.

However, we appreciate Judge McMahon’s honest recognition of the “Alice-in-Wonderland nature” of her decision, which allows the executive branch to publicly proclaim the legality of the targeted killing program while insisting that the public may not know the reasons for that conclusion. The administration has opposed all legal efforts by Mr. Awlaki’s father and others to compel a court review of the decision to have him killed.

Judge McMahon took pains to acknowledge the serious questions the targeted killing program raises about the appropriate limits on government authority in our constitutional system and expressed the view that, as a matter of policy, the administration’s legal analysis should be made public.

“More fulsome disclosure of the legal reasoning on which the administration relies to justify the targeted killing of individuals, including united States citizens, far from any recognizable ‘hot’ field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated,” the judge wrote.

President Obama, who pledged more government transparency in his first campaign and early days in office, should heed those sentiments and order the legal memo released along with other information that would shed light on the government’s legal reasoning and the evidence leading to Mr. Awlaki’s killing.

It is past time he did so.

 

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Secrecy (cont.)

By Christopher B. Daly

In the never-ending, bipartisan struggle between government and journalism, a few updates:

–Turns out, courts not only grant the government the power to spy on our cellphone and email records, but they also keep those orders a secret from us. The Times story today refers to an article by U.S. Magistrate Judge Stephen Wm. Smith, which is worth reading.

–From the Mad Queen Dept: Even when documents have been divulged to the general public, as, for example, in the Wikileaks case, that doesn’t mean that they’re not still secret. So there.

So, if you know any secrets, you should probably un-know them. But don’t tell anybody.

 

 

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