Breaching secrecy’s barricades
Analysis: Release of drone documents is a departure for secretive administration The American Civil Liberties Union called the paper “chilling.”
WASHINGTON— Early in his first term, President Barack Obama rejected the vehement protests of the CIA and ordered the public disclosure of secret Justice Department legal opinions on interrogation and torture that had been written in the administration of George W. Bush.
In the case of his own Justice Department’s legal opinions on assassination and the “targeted killing” of terrorism suspects, however, Obama has taken a very different approach.
Although he entered office promising the most transparent administration in history, he has adamantly refused to make those opinions public — notably one that justifi ed 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 diffi cult.
But with the disclosure Monday of a Justice Department document offering a detailed legal analysis of the targeted killing of Americans, the barricades of secrecy have been breached. Just as leaks of interrogation memos in 2004 under Bush ignited a fi erce public debate over torture, the report on the so- called “white paper” by NBC News instantly touched off a renewed, and better informed, public discussion about whether and when a president can order the execution of a citizen based on secret intelligence and without any trial.
The Justice Department prepared the unclassifi ed, 16- page document to brief congressional oversight committees in lieu of providing lawmakers with the far longer, classified memorandum that justifi ed the killing of Awlaki, a New Mexico- born Sunni Muslim cleric who joined al- Qaida’s branch in Yemen and died in a U. S. drone strike there in September 2011. But the paper dovetails with the legal arguments in that still- secret document, as described to The New York Times in October 2011 by people who have read it.
In short, the Justice Department argued that it was lawful for the government to kill a U. S. citizen if “an informed, high- level offi cial” decided that the target was a ranking figure in al- Qaida who posed “an imminent threat of violent attack against the United States” and if his capture was not feasible.
While the administration’s basic legal conclusions had already been aired — including in speeches by Attorney General Eric Holder and other offi cials — the white paper provided a far more detailed legal justification.
Some human rights groups dismissed it in language reminiscent of their critiques of the Bush administration’s legal opinions on torture, taking particular aim at its fl exible defi nition of what might constitute an “imminent” threat and the lack of any outside check on its claimed authority.
The American Civil Liberties Union called the paper “chilling.” A spokeswoman for Amnesty International said there was increasing evidence that U. S. practices were “unlawful, violating the fundamental human right not to be arbitrarily deprived of one’s life.”
But Matthew Waxman, a Columbia University law professor who worked on detainee affairs in the Bush administration, defended the reasoning as “careful and narrow,” saying it was limited to cases in which “there are no viable alternatives.”
“I see a very serious and reasonable effort to translate traditional legal principles to account for the context of this war,” he said.
Separately on Tuesday, when asked why the Bush memos could be released while the Obama memos were withheld, Holder suggested cautiously that it might be possible to make more material public.
“We’ll have to, you know, look at this and see how — what it is we want to do with those memos,” he said, while also noting “a real concern” about revealing information that could “put at risk the very mechanisms that we use to try to keep the American people safe, which is our primary responsibility.”