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The Weak Justification for Keeping the Targeted Killing Memos Secret

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Ahead of the confirmation hearing for John Brennan, who President Barack Obama nominated to head the CIA, the Obama administration has instructed the Justice Department to provide copies of a targeted killing memo to the two intelligence committees in Congress.

The Justice Department drafted a “white paper” explaining the legal basis for using the targeted killing program to assassinate US citizens. This “white paper,” released by NBC News this week, was provided to the Senate Select Committee on Intelligence as a substitute for the memo. Presumably, it was handed over after US-born Muslim cleric Anwar al-Awlaki was killed by a drone in September 2011.

Sen. Ron Wyden sent a letter mid-January to Brennan informing him that he had been asking to see “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” for the past two years. He had not been provided with the opinions themselves and asked Brennan to provide him access to the “opinions,” which outline the “government’s ability to target and kill Americans believed to be involved in terrorism.”

On February 4, just prior to when NBC News began to report on the Justice Department “white paper,” eleven senators including Wyden sent a letter requesting Obama have the Department provide any legal opinions on the President’s authority to “deliberately kill American citizens.”

Now that the Obama administration is no longer illegitimately keeping the targeted killing memo secret from senators, who under law should be able to see it, the American Civil Liberties Union (ACLU) has renewed calls for the administration to make the full memo public:

“While this is a small step in the right direction, democratic transparency requires President Obama to make the full memo available to the public. The United States is not a nation of secret laws, and a memo authorizing the killing of American citizens is too important to keep from the American people,” ACLU Senior Legislative Counsel Christopher Anders said. “Everyone – not just select members of Congress – has a right to know when the government believes it can kill American citizens. This concession has taken far too long and falls far short of President Obama’s commitment to transparency he pledged to abide by since becoming president.”

But, Wyden had been requesting “secret legal opinions.” That suggests the existence of more than one memo. (Marcy Wheeler wrote in  a recent post on how the release of the memos is being misreported.)

What the ACLU (and others) have been most interested in seeing is a copy of the Office of Legal Counsel memo from the Justice Department, which provides justification for the targeted killing of Al-Awlaki. There was no mention of what went into deciding to assassinate this man in the chilling but amateurish “white paper” that was released.

In a Freedom of Information Act lawsuit brought by the New York Times and the ACLU, the Justice Department, CIA and Defense Department argued in a case that it won that it did not have to disclose the legal basis for killing US citizens because it would reveal “classified and statutorily protected information.” It maintained it could not reveal whether memos had been drawn up to justify the killings of Al-Awlaki, his 16-year-old son Abdulrahman al-Awlaki or Samir Khan because that would reveal whether the CIA was behind those killings or not. Essentially, the government contended it could keep secret interpretations of the law and the families of citizens assassinated by their own government have no right to know what agency was responsible for executing them.

Officials like Attorney General Eric Holder and Brennan made speeches in 2012 on the targeted killing program. The ACLU attempted to cite the speeches and statements made by the president during a Google chat and on television to bolster a case for releasing the memo. The government  did not change its position.

As the ACLU pointed out in their targeted killing FOIA lawsuit, for years now, “Senior government officials have freely disclosed information about the CIA’s drone program, both on the record and off, while the CIA has insisted to this Court and others that the program cannot be discussed, or even acknowledged, without jeopardizing national security. One consequence is that the public’s understanding of the effectiveness, morality, and legality of the government’s bureaucratized killing program comes solely from the government’s own selective, self-serving, and unverifiable representations concerning it.”

The Obama administration has been all too willing to share vague details or snippets of information on the program to show that reasonable and conscientious people are in charge of deciding who does and does not get killed by drones. It has not been willing to talk about aspects of the program that would make it difficult to justify the operation of a targeted killing program. (It has even pressured media organizations to not release stories revealing details involving drone operations—and press like the Washington Post have complied.)

Last night, “The Daily Show” did a segment on what many Americans are learning about Obama administration’s targeted killing program. Host Jon Stewart says he might like to read the full memo and he was sure they would release it because in 2009 they released some other “touchy” global war on terrorism memos: the memos President George W. Bush used to justify torture.

The program shows a clip of the late Senator Ted Kennedy & then-Senator Joseph Biden, when they went after Attorney General John Ashcroft for keeping the memos from Congress. Biden threatened Ashcroft with contempt. If this is how things were under Bush, surely any drone strike memos would be made public now?

White House flak Jay Carney then appears and answers a question on whether the memos will be released. He says, “I just have nothing for you on alleged memos regarding potentially classified matters.” And, “Without going into the alleged existence of any particular memo or action, I can say what we cannot do is talk about classified operations.”

Stewart sharply states, “I don’t know what’s worse: the alarmingly ambiguous guidelines for our drone strike program or the fact that you’re saying we may not have written these alarmingly ambiguous guidelines down in memo form because I’m pretty sure the Justice Department has memos on it.” And he rightly points out, in comparing the rationale for releasing the torture memos, the Obama administration was publicly against the continued use of torture techniques. On the other hand, the administration intends to keep authorizing drone strikes so the lesson here is information on possibly illegal programs can be disclosed if the current administration in power does not intend to use them anymore.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."