[Infowarrior] - OpEd: The Targeted Killing Memo and the Problem of Secret Law

[Richard Forno]

February 7, 2013, 2:34 pm
The Targeted Killing Memo and the Problem of Secret Law

By LINCOLN CAPLAN

http://takingnote.blogs.nytimes.com/2013/02/07/the-targeted-killing-memo-and-the-problem-of-secret-law/?hp

After NBC news published the targeted killing “white paper,” a bipartisan group of senators led by Ron Wyden, the Democrat from Oregon, asked the White House to release the actual legal opinions outlining why the president has the right to authorize the killing of American citizens during the course of counterterrorism operations.

The White House announced Wednesday that it would release to Congress classified documents on drone attacks, but it’s not yet clear whether those include the full classified 2010 memorandum presenting the Justice Department’s legal reasoning.

Whatever the case may be, the White House is only prepared to share these documents with two Congressional Intelligence Committees, not all of Congress and not the public. (Intelligence personnel could black out truly sensitive material to avoid jeopardizing national security.)

In other words, President Obama is still not committing to full disclosure — which is especially disappointing since he released four detailed torture memos from the Bush years after he took office. Through his actions, or rather inaction, he is betraying a promise of his 2008 campaign as well as a fundamental element of American democracy: Openness between the government and the people it represents. Without that, there is no reliable basis for accountability.

Democracy works best when the government minimizes secrecy, including by recognizing that while the mechanics of national security operations must of course remain covert, there’s no reason not to openly explain the legal basis for these operations.

America re-learned this lesson six years ago, when the public realized that the Bush administration had secretly made law within the executive branch, allowing for the torture of prisoners taken in its war on terror.

Until then, as I’ve written about elsewhere in more detail, the Bush administration had acted in this area outside the bounds of democracy and accountability. When its legal memo about torture surfaced, it became clear that it expressed a political view, not a legally defensible one, and wide agreement developed among experts that the case for torture was unsupported by American or international law.

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During the past generation, there has been a profound disagreement about the scope of presidential power — and, really, about the nature of American democracy.

The view of the Bush administration was that the separation of powers between the federal government’s three branches gives the president exclusive control over decisions about war, regardless of contradictory law established by Congress, the Supreme Court or an international treaty signed by the  United States.

The view of the Clinton administration was that the separation of powers gives Congress and the president overlapping control. This is also the view of the modern Supreme Court. It means that laws arising from Congress, the court or international treaty constrain the executive branch.

The Bush view meant that the president was literally unchecked: it asserted the kind of sweeping authority that the Nixon administration only threatened but that brought down that administration when the Supreme Court ruled that it wasn’t above the law. The Clinton view meant that the executive branch restrained itself and respected the views of the other branches.

The Obama administration has suggested it holds the Clinton view. That is the welcome gist of the White House announcement that it will let congressional committees see classified documents presenting the administration’s legal basis for targeted killing.

But partial disclosure is insufficient. Just as it was essential for Congress and the American people to read the Bush administration’s reasoning about torture, it is now essential for Congress and the people to gain access to the Obama administration’s reasoning about targeted killing.

Because of its mistaken view of presidential power, the Bush administration functioned in critical ways as an autocracy, not as the executive branch checked and balanced by other branches in a democracy. It’s important for the Obama administration to confirm that it is doing the opposite.

What’s at stake are not secret operations of the government but, instead, the nature and character of American governance.

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