10-6-2011By Daphne Eviatar
Senior Associate, Law and Security
Though President Obama received plenty of praise from Republicans right after the killing of the U.S. citizen and Yemeni cleric Anwar al-Awlaki last Friday, a growing number of former Bush administration officials and policy wonks across the political spectrum are calling on Obama to provide a more detailed legal justification for the lethal drone strike.
On Monday, Bush Administration legal advisor John Bellinger wrote in the Washington Post that “the administration needs to work harder to explain and defend its use of drones as lawful and appropriate — to allies and critics — if it wants to avoid losing international support and potentially exposing administration officials to legal liability.”Harvard Law Professor Jack Goldsmith, who briefly headed the Justice Department’s Office of Legal Counsel under President Bush, similarly argued on the Lawfare blog that the reasoning behind the classified legal opinion written by his former colleagues at OLC supporting the Awlaki killing should be publicly released, saying:
The killing of a U.S. citizen in this context is unusual and in some quarters controversial. A thorough public explanation of the legal basis for the killing (and for targeted killings generally) would allow experts in the press, the academy, and Congress to scrutinize and criticize it, and would . . . permit a much more informed public debate. Such public scrutiny is especially appropriate since, as Judge [John] Bates’s ruling last year shows, courts are unlikely to review executive action in this context. In a real sense, legal accountability for the practice of targeted killings depends on a thorough public legal explanation by the administration.
Former Democratic U.S. Representative and intelligence committee member Jane Harman has likewise said that “the Justice Department should release that memo” because the “debate on the legal grounds for that strategy should be more in the open.” On Tuesday, Senate Armed Services Committee Chairman Carl Levin told reporters essentially the same thing.
I made a similar argument right after the news of the Awlaki killing last Friday.
And Tuesday, Scott Shane in The New York Times highlights the absurdity of a “growing phenomenon: information that is public but classified.” It’s a point the Brennan Center for Justice makes in its new report on overclassification as well.
Indeed, President Obama, speaking just hours after a CIA drone strike killed al-Awlaki in Yemen, could not say the words “drone” or “CIA” – because the operation was classified.
Shane quotes Steven Aftergood of the Federation of American Scientists, who tracks government classification policies, saying that the secrecy of a disputed policy like the drone attacks is “a kind of self-inflicted autism that cuts decision makers off from the input they need, both from inside the government and outside.” After the Awlaki killing, he says, “any justification for withholding the O.L.C. memo went away.”
Even the Washington Post, which came out in favor of the drone strike, this week called on President Obama to release the legal memos justifying it. “Refusal to do so could fuel inaccurate criticism that this president is acting no differently than his predecessor, who justified dubious enhanced-interrogation techniques through secret and now discredited “torture memos.”
As Brookings Institution fellow Benjamin Wittes wrote this week about the administration’s drones policy: “There is something deeply wrong about the faux covertness of this program…. It is an abuse of the secrecy system, and it is an abuse that grows worse the more that drone strikes become the centerpiece of American counter-terrorism policy.”
I would add that in making the Obama administration look silly, it’s not really helping U.S. national security, either.