They insist the program is a state secret, even though Obama officials talk about it constantly. I've even caught 'em on camera!
When the Jamaican-American rapper Shaggy released the hit single "It Wasn't Me," he sought only to capture what might happen if a self-styled player got caught red-handed by his honey "creeping with the girl next door." There wasn't any ambiguity in the philandering character's situation: Not only did his girlfriend see him mid-coitus on the bathroom floor, he explained to a friend, "she also caught me on the counter, saw me kissin' on the sofa, I even had her in the shower, she even caught me on camera." In addition to the video evidence, "she saw the marks on my shoulder, heard the words that I told her, heard the scream get louder, and she stayed until it was over."
It seemed the game was up.
"I don't know what to do," the cheater lamented. But his friend suggested an audacious alternative.
"Say it wasn't you," he advised.
In 2000, when the song was released, it was received as a deliberately absurdist parody. A denial so brazen, in the face of so much evidence, seemed inconceivable. But "the Shaggy defense" would eventually make its way into the legal system, as Josh Levin explained in his groundbreaking coverage of the R. Kelly trial, and now the clever lawyers at the Department of Justice seem to be pursuing a similarly brazen strategy in their ongoing lawsuit with the ACLU.
The case concerns President Obama's targeted-killing program, which has been subject to several lawsuits. But none of them ever make it to court, so that the various legal claims can be adjudicated. Instead, the Justice Department says the question of whether we even have a drone program or not is classified. It can neither be confirmed nor denied, so lawsuits against it are void.
Judges go along.
I know what you're thinking: Everyone knows there's a CIA drone program; Obama Administration officials have given speeches defending it, leaked stories to the media about it, and referred to it during on-the-record interviews; there's an ongoing debate about its morality in the domestic and foreign press. How could the mere fact of its existence be considered a state secret?
Indeed, the Department of Justice's argument grows weaker and more absurd with every passing week, as Obama Administration officials continue to talk about something that, officially, doesn't exist. Marcy Wheeler says it's like Team Obama has the opposite of an imaginary friend: People have real conversations about a subject but then act like they were pretend.
If the Shaggy defense is defined by its brazen absurdity, the latest legal brief filed by DOJ perhaps ranks as the Shaggiest (most Boombastic?) in history. It was prompted by the ACLU, which is trying to prove that the targeted-killing program isn't a state secret so its lawsuit can go forward. As a result, they dutifully update their argument every time federal officials talk drones.
That's happened a lot lately, as Glenn Greenwald explains:
Just last week, Obama's nominee to lead the CIA, John Brennan, spent hours upon hours before the Senate Intelligence Committee praising the CIA targeted killing program and discussing the oversight he would make available for that program as CIA director. Then, GOP House Intelligence Committee Chairman Mike Rogers went on Face the Nation and did the same; when asked if "the administration has been straight with Congress in sharing information on what the rules are about using drones," Rep. Rogers replied: "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."
Clearer and more definitive acknowledgment by the US government that the CIA has a drone program is impossible to imagine. As a result, late last week, the ACLU wrote a letter to the appellate court where its case is now pending to notify the court of these new public acknowledgments.
The DOJ has now replied to that letter. The best part:
Plaintiffs also cite the transcript of the confirmation hearing of John Brennan, the nominee for Director of Central Intelligence. They assert that "the nominee ... and members of the committee extensively discussed various aspects of the CIA's targeted killing progra m..." However, plaintiffs identify no statement in which Mr. Brennan allegedly confirms purported CIA involvement in the use of unmanned aerial vehicles for "targeted killing." Rather, plaintiffs cite instances in which members of Congress mentioned "targeted killing," and general discussions of "targeted killing" that do not address the involvement of any particular agency.
As you'll recall if you watched or read about the John Brennan hearings, he told the Senate Intelligence Committee that "there is a misimpression on the part of some of American people who believe that we take strikes to punish terrorists for past transgressions. Nothing could be further from the truth. We only take such actions as a last resort to save lives when there's no other alternative."
Senator Wyden: If the executive branch makes a mistake and kills the wrong person or a group of the wrong people, how should the government acknowledge that?
Brennan: I believe we need to acknowledge that. I need -- we need to it knowledge it to our foreign partners. We need to acknowledge it publicly.
I'd love to see the judge in the ACLU lawsuit try to haul Brennan into court and ask him about the times he's made nationally televised arguments about the very same drone program that DOJ won't confirm. At this point, the Obama Administration has been so brazenly and unapologetically advancing obviously untrue arguments that I wouldn't be surprised if he denied it.
"I watched you give a speech defending."
"Saw you sparring with Wyden."
It wouldn't be any more dishonest than the claims Team Obama is now making. What is it lately with the DOJ's ethical compass? They may think they're clever lawyers, but they're completely lost.