2-7-2013By Adam Jacobson
Law & Security Program
This week, a white paper with some of the Obama Administration’s legal justification for targeted killings of alleged terrorists abroad was leaked to the press. Last night, the administration announced its decision to release to Congress its secret memo justifying targeted killing of American citizens overseas. This is progress, given the administration’s limited public justification of these attacks, but it’s not enough.
The memo sent to Congress by the White House yesterday was written by the Justice Department’s Office of Legal Counsel (OLC) to analyze the legality of killing an American citizen, Anwar al-Awlaki, allegedly a top figure in Al Qaeda’s Yemen branch, Al Qaeda in the Arabian Peninsula (AQAP). Awlaki was killed by a drone strike in Yemen on September 30, 2011.
There have also been reports that the Obama Administration has been assembling a “playbook” for targeted killings – a set of rules to govern who, what, and where, with regards to the attacks.
Obama Administration officials have been, as my colleague Gabor Rona put it, drip-feeding their public justifications for their targeted killing program. The latest drip is concession to release the OLC memo to Congress. Not even the white paper this week (leaked to NBC News from an unknown source) provides much more information than administration officials had already given in public statements.
Human Rights First has been calling on the Obama administration to be more transparent about its legal justification for the targeted killing program, and released a blueprint in December called “How To Ensure That the U.S. Drone Program Does Not Violate Human Rights.” Among the recommendations in the blueprint, we call for the administration to release the OLC memo and any other memorandum the OLC has drafted on the subject, and to make the process more transparent.
Senator Ron Wyden (D-OR) sent a letter to President Obama’s National Security Advisor (and nominee to become CIA Director) John Brennan asking for the documents, and said that he would “pull out all the stops to get the actual legal analysis, because without it, in effect, the administration is, in effect, practicing secret law.” He also called the administration’s decision to send the OLC memo to Congress “an encouraging first step,” adding, “There is now an opportunity to build on it.” Earlier this week, Senator Wyden, Senator Dianne Feinstein, and nine other Senators sent the President a letter asking to see the secret memo.
It is important that the public have access to all operative law and policy concerning targeted killing, including the “playbook” and any OLC memos justifying the attacks. Of course, there may need to be some redactions for national security reasons. But there is no reason why the Obama Administration shouldn’t be telling the American people its full legal reasoning behind killing suspected terrorists, including American citizens.
President Obama entered his first term promising the American people a transparent government. Now is the time for him to live up to that promise and release the legal justification for targeted killing. We are watching John Brennan’s nomination hearing for the position of Director of the CIA and we will be listening to what he says about how he will ensure transparency and oversight. You can follow along on Twitter here.