No Transparency on 'Death by Drone' Program

      The Obama administration has given repeated assurances that it is exceedingly careful in its expanded use of unmanned aircraft — drones — for the targeted killing of al Qaeda terrorists. Unnamed officials provided for-publication backgrounders with details of the process for identifying targets and giving the go-ahead for the kill. Defense Secretary Leon Panetta went on the record in a CBS News interview to say that only the president can give the final authorization for the kill.
      The administration has also gone to some lengths to assure Americans that Justice Department and Pentagon lawyers have given the most careful consideration to the delicate issue posed by targeting a U.S. citizen allied with al Qaeda for death by drone. In the most elaborate iteration, Attorney General Eric Holder in March 2012 outlined a three-part test that must be met before a U.S. citizen is targeted; the third part itself includes a check-list of four specified conditions to meet to comply with the international law of war.
      With all this ostensibly careful consideration, one would think that the administration must have a legal document that formally lays out the reasons why the law permits the government to dispense with any sort of judicial procedure or review before a targeted killing. But apparently not. At least that is the seeming conclusion from the government’s position in resisting, successfully so far, lawsuits by the American Civil Liberties Union (ACLU) and the New York Times seeking details about the drone program, including the legal rationale relied on by the administration in carrying it out.
      Between them, the ACLU and the Times have been invoking the federal Freedom of Information Act (FOIA) for nearly three years to force the administration to open up about the drone program. To its credit, the administration has gradually become more forthcoming about the program in speeches, interviews, and not-for-attribution backgrounders. In court, however, government lawyers have pulled out all stops to avoid being forced to turn over the actual documents about the program, including any formal legal opinions to justify it.
      In a ruling last week [Jan. 2], a federal judge in New York City reluctantly sided with the government in rejecting the FOIA requests. In a 70-page opinion, U.S. District Court Judge Colleen McMahon acknowledged that “more fulsome disclosure” of information about the program “would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.” But she said that Freedom of Information Act “precedents” left her no choice but to find the requested materials covered by the act’s broadly written exemptions covering national security (exemption 1), classified documents (exemption 3) and internal legal deliberations (exemption 5).
      Admittedly, the ACLU and the Times had an uphill fight in trying to get around the first two of those exemptions covering national security and classified documents. Formal legal opinions, however, are generally not exempt under the FOIA. And the administration eventually acknowledged the existence of a joint memorandum by the Department of Defense and the Justice Department’s Office of Legal Counsel (OLC) addressing the legal issue.
      In seeking to keep the memo under wraps, the government argued first that it included information about intelligence sources and methods exempted under the FOIA. As McMahon noted, however, the document could have been “redacted” — that is, edited – to black out the properly classified information and the rest of the document released. But the government further argued that the memo was not a formal opinion, but was the kind of “confidential, pre-decisional, and deliberative” legal advice covered by exemption 5.
      Confronted with that position, McMahon said she could not order the memo disclosed. There was “no evidence,” McMahon wrote, that the government had specifically relied on the arguments made in the memo or that it had been “expressly adopted” or “incorporated by reference.”
      McMahon was apt in analogizing the issue to the previous dispute over the Bush administration’s use of torture or torture-like tactics in interrogating al Qaeda members. Justice Department lawyers famously green-lighted the use of so-called “enhanced interrogation techniques,” including waterboarding, in legal memos that came to light only after the fact — indeed, only after a new head of OLC had repudiated them. Exposed to the light of day, the legal opinions were denounced by a range of legal experts and observers as poorly reasoned.
      The Obama administration’s legal justifications for the drone program might or might not survive close scrutiny, but for now they are locked behind a Freedom of Information Act exemption. The ACLU and the Times both say they will appeal McMahon’s ruling. The ACLU is asking not only for the legal memoranda, but also for the information the government used to target Anwar al-Awlaki, the U.S.-born Muslim cleric killed by a drone-fired missile in Yemen in September 2011. McMahon described the ACLU’s laundry-basket FOIA request as “facially overbroad.” But she clearly wanted to grant the Times’s narrower request except for the narrow reading that courts have given to the FOIA in the past.
      In taking office, Obama pledged his administration to greater transparency, but freedom-of-information advocates such as the Sunlight Foundation say the administration’s record has been disappointing. The administration is evidently glad to take credit for using drones to wipe out al Qaeda leaders, but unwilling to allow close scrutiny of the legal reasoning that supposedly justifies the way the program is being carried out.