Privacy SOS

Terror Tuesday: Playing politics with the “kill lists”

Image: ACLUm/DonkeyHotey

“Sunlight,” wrote Supreme Court Justice Louis Brandeis in 1933, “is said to be the best of disinfectants; electric light the most efficient policeman.”

It wouldn’t be fair to say that Congress has been content to wallow in self-imposed stench and darkness since the Administration’s “targeted killing” of American citizens became public. 

As the Marcy Wheeler documents, on a dozen occasions individual Members of Congress requested that the Obama Administration provide them with its Office of Legal Council memo authorizing the killing of US citizen Anwar al-Awlaki. It has been a bipartisan call of sorts, with Senators Ron Wyden (D-OR), Patrick Leany (D-VT) and Rep. Jerrold Nadler (D-NY) responsible for the bulk of the requests, while, in the Republican camp, Rep. Tom Graves (R-GA) and Senators Chuck Grassley (R-IA) and John Cornyn (R-TX) have chimed in.

Among the questions Senator Wyden wants answered by Attorney General Holder are these

“How much evidence does the President need to decide that a particular American is part of a terrorist group?”

“Does the President have to provide individual Americans with an opportunity to surrender before using lethal force against them?”

"Is the President’s authority to kill Americans based on authorization from Congress or his own authority as Commander-in-Chief?”

“Can the President order intelligence agencies to kill an American who is inside the United States?”

You would think that having public access to this information is a no-brainer for a country that calls itself a democracy – and even more so in a country whose Constitution forbids “any person” from being deprived of “life, liberty, or property without due process of law.” But as far as we know, in the United States, the answers to these questions remain a closely guarded secret.

Rather than continuing to ask for what the Administration is resolutely refusing to give, Congress, as Adam Serwer writes in Mother Jones, “is finally standing up to President Barack Obama on targeted killing. Almost a year after three American citizens were killed in US drone strikes, legislators are pushing the administration to explain why it believes it’s legal to kill American terror suspects overseas.”

Standing up to President Obama is not something the political parties do together. 

So although Patrick Leahy, chair of the Judiciary Committee, was among the Senators requesting the Office of Legal Counsel to disclose the legal justification for killing Americans, he blocked the effort by Senator Cornyn to attach an amendment requiring such disclosure to the extension of the FISA Amendments Act. Cornyn wanted the House and Senate Committees on Intelligence, the Judiciary and Armed Services to have that legal memo within 30 days of the passage of the FISA Amendments Act.

Instead, Senator Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee, added to the Intelligence Authorization Act for Fiscal Year 2013 language requiring the Attorney General to provide a listing of every post 9/11 legal opinion with “as much detail as possible” to both Congressional intelligence committees. 

However, there will be no “standing up” to the President. No disclosure is required if the President can demonstrate that withholding information is a matter of executive privilege. Furthermore, covert action findings can be restricted to only a handful of Members. And any release of information can be delayed for six months after the passage of the Intelligence Authorization Act – well after the next election.

Such a stab at “oversight” is unlikely to disinfect the halls or turn on the lights. And it seems designed to leave Americans completely in the dark.

Not only would they have no access to whatever tidbits of information about the lethal targeting of Americans may (or may not) reach the intelligence committees (or a few privileged members of those committees). But other parts of the very same intelligence act  – which earmarks over a half a billion dollars for the Intelligence Community Management Account of the DNI and a similar amount for the Retirement and Disability Fund of the CIA – are designed to ensure that Americans  have even less access to information about what the government is doing in their name than they do at present.

The New York Times’ Bill Keller has dubbed the Intelligence Authorization Act for FY 2013 the “Keep Americans in the Dark Actfor provisions designed to stop the kind of leaks that brought the “kill lists” to public attention. 

Determined to outflank the Republicans like Sen. Cornyn who have been calling for an independent “special counsel” to investigate national security leaks, Senator Feinstein added to the intelligence bill provisions (Section 501) requiring notice to the intelligence committees of authorized disclosures of intelligence information, sharply reducing the number of intelligence officers who can speak to reporters on condition of anonymity and threatening those who disclose classified information with the loss of their pensions. 

No sooner was the bill endorsed by the Senate Intelligence Committee with only Senator Wyden voting against it than it was assailed by civil liberties groups and the mainstream press as (in the words of The Washington Post ombudsman) “bad for journalism, bad for the public.” The New York Times termed it part of “a pernicious drive toward secrecy.”

In a saner Washington,” wrote Bill Keller, “a reasonable effort to control truly harmful leaks might be balanced by an equally serious effort to roll back excessive classification, so that we could have a more informed debate about drones and cyberwarfare and kill lists. In that Washington, we could worry a little less about where the stories came from, and a little more about what’s in them.

By early August, the Senate Committee was feeling the heat from more than the media. Criticized by intelligence agencies disturbed by the threat to their pensions, by some executive branch officials as well as members of the House Intelligence Committee, it was reportedly backing away from the provisions it had just passed. 

In his 2007 book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, New York Times’ reporter Charlie Savage describes how under the Bush Administration, “the zone of secrecy surrounding the executive branch has been dramatically widened” – thanks in part to the Congressional rush “to hand even more powers to the president, sometimes through stealth legislation that was discovered only much later.” 

Today, that process continues. Congress now routinely votes to expand executive branch powers on “national security” grounds while at the same time (in Steven Aftergood’s words) it erects “barriers to greater openness” and blocks efforts “to improve transparency” – including of the executive branch. 

Charlie Savage reminds us in his book Takeover that

the power to control information is both a shield and a sword. It was no accident that the Nixon administration, which went further than any predecessor in centralizing power and eroding democratic checks and balances, made expanding secrecy a major part of its strategy. When government officials can select which fragments of information reach the public, they can shape public opinion in a way that will improve their chances of being returned to office. Conversely, a freer flow of information about what the government is doing serves as one of the most sweeping checks on abuses by those in power.

© 2021 ACLU of Massachusetts.