The Obama Administration's invocation of national security to deny Freedom of Information Act requests from the ACLU and New York Times is ridiculous.
Late Wednesday, the Obama Administration denied a Freedom of Information Act request demanding information about its targeted killing program. Among the public, there is broad support for the notion that the president and CIA should be able to act in secret while waging the War on Terrorism. For that reason, the White House hasn't gotten much grief for its denial. What needs to be more widely understood are the several issues that this particular denial raises. Even if you think the president should enjoy broad latitude to act in secret on matters of national security, there are good reasons to find his actions in this case objectionable and pernicious.
In broad strokes, here is the game that the White House is playing: President Obama, John Brennan, and other senior administration officials are happy to disclose information about government drone strikes when they are touting counterterrorism success stories. But every time critics of their national-security strategy seek information about their actions, they claim that some of the very things they've spoken about on and off the record are actually state secrets.
The absurdity of their assertions is best illustrated with specific examples. The legal brief that explains why various documents cannot not be released to the public states the following on page 10:
Whether or not the United States government conducted the particular operations that led to the deaths of Anwar al-Aulaki and the other individuals named in the FOIA requests remains classified.
It also states:
...whether or not the CIA has the authority to be, or is in fact, directly involved in targeted lethal operations remains classified.
All that may be technically classified, but it has long since ceased to be secret or unknown by any reasonable standard. Here is President Obama himself acknowledging that American drones kill people who appear on a list of terrorists. Defense Secretary Leon Panetta has acknowledged that he made use of Predator drones during his tenure at the CIA. While Panetta was the sitting director of the CIA, he said that drones were "the only game in town in terms of confronting and trying to disrupt the al-Qaeda leadership."
Said White House counterterrorism adviser John Brennan in an April speech:
What has clearly captured the attention of many, however, is a different practice, beyond hot battlefields like Afghanistan -- identifying specific members of al-Qa'ida and then targeting them with lethal force, often using aircraft remotely operated by pilots who can be hundreds if not thousands of miles away. This is what I want to focus on today.
He went on to note that the U.S. "conducts targeted strikes against specific al-Qa'ida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones." He went on to discuss "the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qa'ida outside the "hot" battlefield of Afghanistan." He concluded that "in recent years, with the help of targeted strikes we have turned al-Qa'ida into a shadow of what it once was. They are on the road to destruction."
In summary, public statements by high-ranking Obama Administration officials have revealed enough about our targeted kills to make absurd the contention that "... whether or not the CIA has the authority to be, or is in fact, directly involved in targeted lethal operations remains classified."
Off-the-record leaks, most of them probably authorized, make the administration's position even more absurd.
Take this April Wall Street Journal story: "The Obama administration has given the Central Intelligence Agency and U.S. military greater leeway to target suspected al Qaeda militants in Yemen with drones, responding to worries a new haven is being established from which to mount attacks on the West. The policy shift, as described by senior U.S. officials, includes targeting fighters whose names aren't known but who are deemed to be high-value terrorism targets or threats to the U.S."
Dan Klaidman's new book on Obama's efforts in the War on Terrorism notes, "Though the program was covert, [Rahm] Emanuel pushed the CIA to publicize its covert successes. When Mehsud was killed, agency public affairs officers anonymously trumpeted their triumph, leaking colorful tidbits to trusted reporters on the intelligence beat."
Here's another passage from his book:
But as the Americans were closing in on Awlaki, Obama let it be known that he didn't want his options preemptively foreclosed. If there was a clear shot at the terrorist leader, even one that risked civilian deaths, he wanted to be advised of it. "Bring it to me and let me decide in the reality of the moment rather than in the abstract," he said, according to one Obama confidant. "In this instance," recalled the source, "the president considered relaxing some of his collateral requirements." But in the end Obama was never forced to confront that awful dilemma.
On the morning of September 30, after finishing breakfast, Awlaki and several of his companions left the safe house and walked about seven hundred yards to their parked cars. As they were getting into their vehicles, they were blown apart by two Hellfire missiles. (Also killed was Samir Khan, the Pakistani American propagandist for AQAP and editor of the terrorist organization's Internet organ, Inspire. Justice Department lawyers had told the military that they could not approve Khan's killing, but after officials learned he had died in the raid, Khan was deemed "acceptable collateral damage."
The White House is not angrily seeking out the source of this detailed insider account. Various revelations about the CIA drone program, many attributed in the press to "senior administration officials," are not part of the leak investigation launched by Attorney General Eric Holder, despite the fact that the Obama Administration insists that it has not declassified any of it.
There is, finally, the much talked about New York Times story, sourced to "three dozen" of Obama's "current and former advisers," that goes into great detail about how names are added to America's kill list, explicitly affirming the CIA's role in targeted drone killings. While the sourcing on some specific facts in the story is vague, other passages are sourced more narrowly.
For example, here's a "top White House adviser" talking about a CIA drone strike gone wrong:
Just days after taking office, the president got word that the first strike under his administration had killed a number of innocent Pakistanis. "The president was very sharp on the thing, and said, 'I want to know how this happened,' " a top White House adviser recounted.In response to his concern, the C.I.A. downsized its munitions for more pinpoint strikes.
Or consider this passage:
Mr. Obama gave his approval, and Mr. Awlaki was killed in September 2011, along with a fellow propagandist, Samir Khan, an American citizen who was not on the target list but was traveling with him. If the president had qualms about this momentous step, aides said he did not share them. Mr. Obama focused instead on the weight of the evidence showing that the cleric had joined the enemy and was plotting more terrorist attacks.
"This is an easy one," Mr. Daley recalled him saying, though the president warned that in future cases, the evidence might well not be so clear.
So there you have Obama's former chief-of-staff acknowledging that Obama ordered the Awlaki strike.
Without getting into additional examples -- there are many -- suffice it to say the ACLU's Jameel Jaffer is on solid ground when he notes:
The notion that the CIA's targeted killing program is still a secret is beyond absurd. Senior officials have discussed it, both on the record and off. They have taken credit for its putative successes, professed it to be legal, and dismissed concerns about civilian casualties. If they can make these claims to the media, they can answer requests under the Freedom of Information Act. The public is entitled to know more about the legal authority the administration is claiming and the way that the administration is using it. The administration should release the legal memos that purportedly justify the targeted killing program, and it should release more information about the process by which individuals, including American citizens, are added to government kill lists. It should also release the evidence that led the administration to kill three Americans, including a 16-year-old boy, last year.
Their legal rational is pertinent to the decision voters must make about whether to oust Obama from the White House or reelect him.