February 16, 2013
The administration of President Barack Obama refuses to acknowledge to a court that the CIA actually has a drone program that exists. This act is repellent in one respect because the administration’s nominee for CIA chief, John Brennan, sat before senators and answered questions about the program during his confirmation hearing. It is also detestable and fraudulent because President Obama continues to assert his administration is the most transparent and ethical administration in the history of the United States, even as it vigorously fights a major Freedom of Information Act (FOIA) lawsuit in court that would further reveal the legal basis for the administration’s claimed authority to target and execute persons abroad without charge or trial.
Obama participated in another Google Hangout yesterday. He was asked about promising to be the most transparent administration in American history by African-American conservative blogger Kira Davis:
…In 2008, you ran on a platform of really trying to become one of the most transparent administrations in American history. However, with recent leaked guidelines regarding drone strikes on American citizens and Benghazi and closed-door hearings on the budget and deficit, it just feels a lot less transparent than I think we had all hoped it would be. How has the reality of the presidency changed that promise? And what can we do moving forward to kind of get back to that promise?
Obama responded with a bit of a grin "This is the most transparent administration in history and I can document how that is the case. Everything from every visitor that comes into the White House is now part of the public record – that’s something that we changed. Just about every law that we pass, every law that we implement, we put online for everybody to see."
I covered the Obama administration’s commitment to transparency in detail the day before this event. He was more than misleading. As I highlighted, it took a lawsuit by a nonprofit organization to get the White House to start "voluntarily" posting visitor logs. It is not like they did this because they wanted to do it. And each State of the Union, he addresses transparency a little bit less in his speech.
In any case, he said in the Hangout that he has tried to "create a legal and a policy framework that respected our traditions and the rule of law but some of these programs are still classified which meant we might have shared them, for example, with the Congressional Intelligence Office but they’re not on the front page of the newspapers or the web." But his administration has not even been that transparent with members of Congress who are on intelligence committees. The administration has asked to see all eleven memos containing the legal analysis or justification for targeted killings at least 19 times, according to Marcy Wheeler. They’re still waiting to see seven of them.
Lee Doren, creator of the conservative YouTube channel "How the World Works," asked:
A lot of people are very concerned that your administration now believes it’s legal to have drone strikes on American citizens and whether or not that is specifically allowed with citizens within the United States. And if that’s not true, what will you do to create a legal framework to make American citizens in the United States know that drone strikes can’t be used against American citizens?
Obama responded, "There’s never been a drone used on an American citizen on American soil." He proceeded to suggest there are "safeguards" in place for counterterrorism operations and that rules in the United States would be different from outside the US because it is much easier to "capture terrorists" in the US than it is in the "foothills or mountains of Afghanistan or Pakistan."
The second part of his answer was more significant:
…I’m the head of the executive branch and what we’ve done so far is try to work with Congress on oversight issues, but part of what I’m going to have to work with Congress on is to make sure that whatever it is that we’re providing Congress that we have mechanisms to also make sure that the public also understands what’s going on, what the constraints are, what the legal parameters are and that’s something that I take very seriously. I am not somebody who believes that the president has the authority to do whatever he wants or whatever she wants whenever they want just under the guise of counterterrorism. There have to be checks and balances on it. [emphasis added]
The Freedom of Information Act process is a mechanism the public (and press) should be able to use to understand what is going on with counterterrorism operations or, more specifically, the drone programs. It is precisely how details on "constraints" or "legal parameters" could be disclosed so the public would know of them. But the Justice Department under Obama persists in its fight against transparency on the targeted killing program.
The latest development with Congressman Mike Rogers, the chair of the House Intelligence Committee, should be considered an escalation in the secrecy games the administration is playing. Rogers appeared on "Face the Nation" with Bob Schieffer and gave his opinion on whether the administration had been forthright in it sharing of information with Congress on drones and the rules for using these weapons.
…I think they have. Listen, for months — there`s a change in 2008 in July under the previous administration, George Bush, that changed the way we could use air strikes to target belligerents or al Qaeda, who are planning to kill Americans. That changed in July of `08. And it ramped up. And that was taken over when Barack Obama became president.
And as the chairman of the House Intelligence Committee, even as a member, was aware and part of those discussions. And now as chairman, even before they conducted that first air strike that took Awlaki — and remember, this is the guy that was trying to kill some — a whole bunch of U.S. citizens over Detroit on Christmas Day.
This guy was a bad guy. So our options were limited. This was a tool that we could use to stop further terrorist attacks against Americans. I supported it then. Monthly, I have my committee go to the CIA to review them. I as chairman review every single air strike that we use in the war on terror, both from the civilian and the military side when it comes to terrorist strikes.
There is plenty of oversight here. There`s not an American list somewhere overseas for targeting. That does not exist. And I think there has been some sensationalism, Bob. This is a serious matter, but I do think that the oversight rules have been, I think, consistent… [emphasis added]
The congressman said without equivocation that he reviews CIA drone strikes, but the Justice Department argued to a court in a letter, "This Court has repeatedly held that statements made by members of Congress do not constitute official disclosure by an Executive Branch agency."
Jack Goldsmith, a former Bush administration official who worked for the Office of Legal Counsel at the Justice Department under President George W. Bush, deconstructed this statement and suggested the four cases cited by the Justice Department did not rule statements by members of Congress do not constitute "official disclosure."
Goldsmith further reacted:
…I do not see the particular harm from mere acknowledgment of CIA involvement in drone strikes (as opposed information about particular operations, countries, or strikes). In any event, the Chairman of a congressional committee charged by statute with overseeing covert actions by the CIA has now clearly publicly acknowledged CIA involvement in the strikes. After the Rogers statement, which comes on top of many open Executive-branch insinuations (if not much more) of CIA involvement in drone strikes, I do not understand what further harm could come from judicial or Agency acknowledgement. Moreover, the Court would not need to rule broadly about the significance of congressional statements for FOIA cases to conclude that Rogers’ statement, following the Executive branch ones, counts as official acknowledgment…
The Justice Department under Obama could acknowledge the program and the CIA would still be able to argue the CIA should be able to withhold almost all of the information it has on the drone program. But, the fact is the administration wants to keep operating in this legal void where it exploits ambiguities in information law.
The Freedom of Information Act was conceived and passed in its earliest form by Representative John Moss in 1966 for the express purpose of making it harder for executive branch agencies to engage in the kind of "silly secrecy" the Justice Department is engaged in now.
Individuals have fought to establish a great tradition of openness, but true defenders of the public right to know have not typically come from the Executive Branch. They’ve come from the grassroots, nonprofit organizations and Congress.
As much as Obama wants the public to believe his administration is the most transparent ever, that does not mean anything when it is transparently clear that he is fighting to keep concealed information describing when and how the administration thinks it can and cannot take human life. That reality overshadows every and all accomplishments the administration has achieved and will until the administration ends its abuse of secrecy powers and begins to release the targeted killing memos in at least some form for the public to read.