Secret-Law Alert: Congress Tries to Hide Its Drone Policy

The latest legislative act that undermines self-government
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Last spring, amid increasing controversy over U.S. targeted killings, President Obama assuaged the concerns of legislators and citizens by signaling his intention to shift control of most drone strikes from the CIA to the Department of Defense. "The move could potentially toughen the criteria for drone strikes, strengthen the program’s accountability, and increase transparency," Daniel Klaidman wrote in a piece representative of the favorable coverage the proposal received.

Senior Obama Administration officials were anonymously touting the reform as "a big deal." And John Brennan was portrayed as one of its principled champions:

The policy shift is part of a larger White House initiative known internally as “institutionalization,” an effort to set clear standards and procedures for lethal operations. More than a year in the works, the interagency process has been driven and led by John Brennan, who until he became CIA director earlier this month was Obama’s chief counterterrorism adviser. Brennan, who has presided over the administration’s drone program from almost day one of Obama’s presidency, has grown uncomfortable with the ad hoc and sometimes shifting rules that have governed it. Moreover, Brennan has publicly stated that he would like to see the CIA move away from the kinds of paramilitary operations it began after the September 11 attacks, and return to its more traditional role of gathering and analyzing intelligence.

John Brennan is now director of the CIA. The secretive intelligence agency, with its institutional history of abusing "license to kill," is still operating lethal drones. Yet again, an Obama promise about reforming the War on Terror is unfulfilled. But this week, it became clear that members of the executive branch, including the shape-shifting Brennan, aren't the only culprits keeping drones at the CIA. Congress is playing an active role too. Even more disturbing, a majority of legislators attempted to tie Obama's hands in secret. Their behavior ought to be a scandal. Their illegitimate use of official secrecy undermines democracy.

Secret Law

Congress's secret action was first revealed by Greg Miller in the Washington Post. His story is sourced to anonymous U.S. officials. "Congress has moved to block President Obama’s plan to shift control of the U.S. drone campaign from the CIA to the Defense Department, inserting a secret provision in the massive government spending bill introduced this week that would preserve the spy agency’s role in lethal counterterrorism operations," Miller reported earlier this week. "The measure, included in a classified annex to the $1.1 trillion federal budget plan, would restrict the use of any funding to transfer unmanned aircraft or the authority to carry out drone strikes from the CIA to the Pentagon."

This is problematic for several reasons:

  • Whether the CIA or the Defense Department runs America's targeted killing program is properly a matter for transparent debate and lawmaking. Americans with strong positions or valuable insights on the subject have a right to know where their elected representatives stand on it, to give them input prior to a vote, and to hold them accountable afterward. Taking this action in secret deprives citizens of democracy as it normally functions.
  • Obama is under ongoing pressure from activist groups and members of the public to shift the drone war away from the CIA. Tying his hands in secret is unfair both to the president and the people who'd keep holding him accountable for the lack of progress due to ignorance of a relevant factor.
  • Now that America knows Congress inserted this secret provision into the legislation, can anyone argue that national security has been threatened, or that we are less safe? Of course not. For that reason, treating this as a classified matter doesn't just have problematic consequences for self-government. It was never legitimate, and the legislators responsible should suffer politically. 

Excessive secrecy is a defining feature of the post-9/11 era in American politics, and it is incumbent on U.S. citizens to start rebelling against the trend. What's being threatened is nothing less important than the role of voters in our representative democracy, and if voters don't zealously defend their role by ousting politicians who try to undermine it, our ability to govern ourselves will be slowly taken from us. 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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