The secrecy veiling Obama’s drone war

By Daphne Eviatar
January 4, 2013

It’s rare for a judge to express regret over her own ruling.  But that’s what happened Wednesday, when Judge Colleen McMahon of the U.S. District Court for the Southern District of New York reluctantly ruled that the Obama administration does not need to provide public justification for its deadly drone war.

The memos requested by two New York Times reporters and the American Civil Liberties Union, McMahon wrote, “implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men.” Still, the Freedom of Information Act allows the executive branch to keep many things secret.

In this case, McMahon ruled, the administration’s justifications for the killing of select individuals — including American citizens — without so much as a hearing, constitute an internal “deliberative process” by the government that need not be disclosed.

McMahon did not hide her disappointment. “The Alice-in-Wonderland nature of this pronouncement is not lost on me,” she wrote, “but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules – a veritable Catch-22.” She explained, “I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”

The judge’s lament may have, in part, been induced by the striking discord between the looking-glass world in which she found herself, and the hopes that President Barack Obama had first generated for a newly transparent government.

That continued once he was in office. In a Dec. 29, 2009 executive order, Obama said: “Our democratic principles require that the American people be informed of the activities of their government.” He insisted “our nation’s progress depends on the free flow of information both within the government and to the American people.”

He sent an accompanying memo to the heads of all executive branch agencies:

“Transparency promotes accountability and provides information for citizens about what their government is doing. Information maintained by the federal government is a national asset.”

That was before Obama embarked on a secret, exponential expansion of the deadly drone war. Or at least, before most Americans were aware of it.

Since 2009, there have been more than 300 bombings by remote-controlled U.S. drones in Pakistan, Yemen and Somalia.  During the entire Bush administration, there were just 51.

Thousands of people have reportedly been killed by the “unmanned aerial vehicles.”  Though U.S. officials claim the number of civilian deaths has been minimal, independent studies show otherwise. Ultimately, it’s impossible to know how many people have been killed, or who they were, because the government doesn’t release that information.

This all stands in stark contrast to the heady early days of the Obama presidency.

Back in 2009, overruling the objections of six former CIA directors, Obama released the legal memos created by the Bush administration to justify the use of torture and other “enhanced interrogation techniques” on suspected terrorists.

Today, he insists on hiding memos that justify the secret killing of suspected terrorists – and, as in the case of Anwar al-Awlaki, the killing of their children.

The government has made a point of saying that these killings were all lawful and justified, trotting out senior administration officials to make those claims in a series of speeches over the last two years.

As McMahon noted, “it is not surprising that the government feels somewhat defensive.” After all, “some Americans question the power of the executive to make a unilateral and unreviewable decision to kill an American citizen who is not actively engaged in armed combat operations against this country. Their concern rests on the text of the Constitution and several federal statutes, and is of a piece with concerns harbored by the Framers of our unique form of government.”

The ACLU has already vowed to appeal McMahon’s decision. But its success is far from certain.  It’s also unclear whether any court will ever require the government to release the memos documenting its legal rationale for these secret extrajudicial killings. McMahon’s decision, however, highlights why Obama should release them nonetheless.

Demands for the memos have been mounting ever since The New York Times first revealed that administration lawyers had documented their justification for the Awlaki killing in 2010.

Both U.S. citizens and foreign allies, whom the U.S. government strongly relies on in fighting its “war on terror,” have been skeptical of the program’s legality for years.  This has stymied intelligence-sharing with foreign governments, such as Germany, and infuriated local populations in Pakistan and Yemen, whose support is critical to defeating Al Qaeda and the Taliban.

It has also undermined Obama’s reputation — making it easier for critics to say he’s no better than his predecessor. It could even tarnish his legacy as a president, for he took office promising shiny reforms after a particularly dark chapter in U.S. history.

McMahon herself noted that there is no reason to believe at this point that releasing the memos would endanger national security, because any “intelligence sources and methods” could be redacted. On the contrary, explaining under what circumstances Washington believes targeted killing would be lawful could both quell critics’ claims of U.S. lawlessness and delineate the rules the United States wants other countries to follow.

To the extent that the memos reflect internal deliberations rather than the administration’s final decisions, the Justice Department can make that clear. Obama can also explain where U.S. policy stands now.

It would be a brave and principled move on Obama’s part. It would also go a long way toward developing global confidence that, despite past mistakes, Washington is waging its fight against terrorism in accordance with the rule of law.

If Obama instead continues to take refuge in the courts, he may be able to claim a minor legal victory. But the president will have lost a far more important battle.

PHOTO: Air Force MQ-1 Predator unmanned aircraft. REUTERS/U.S. Air Force/Lt Col Leslie Pratt/Handout

15 comments

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Filthy yankee SCUM.

You want to teach Russia a lesson about human rights, you lard-assed cockroaches?? While blowing innocent civilians in sovreign countries sky-high with your drones?

Posted by NeilMcGowan | Report as abusive

This is just wrong. It will come back to haunt us. Unfortunately Winston Churchill was right about the US. “You can always count on Americans to do the right thing—after they’ve tried everything else.” We are living up to that once again. It will be very difficult to convince the world that sending drones over Washington DC and taking out “enemies of THEIR state” is wrong and an act of war when we set the president for a decade or so.

Posted by tmc | Report as abusive

This is just wrong. It will come back to haunt us. Unfortunately Winston Churchill was right about the US. “You can always count on Americans to do the right thing—after they’ve tried everything else.” We are living up to that once again. It will be very difficult to convince the world that sending drones over Washington DC and taking out “enemies of THEIR state” is wrong and an act of war when we set the president for a decade or so.

Posted by tmc | Report as abusive

It is shameful the degree of passivity that Obama continues to express. It began in his days as a senator by avoiding the tough votes and through the fiscal cliff. He has not been a leader, but an enabler for those that wish to contribute nothing to the US. How did we allow the pendulum to swing so far in the other direction?

Posted by ManfromMars | Report as abusive

War is a dirty business. How many of our own have been killed due to overly-zealous “rules of engagement”. Most of you are not old enough to remember that lawyers and politicians screwed that up too–at the cost of 50,000 lives.

I am tired of seeing 19 year olds sent into battle and then we hold back on support because some wonk sitting behind a desk 10,000 miles away has another self-serving agenda. If you are not in it to win, then do not send our young people into harms way.

Posted by COindependent | Report as abusive

I was referencing the political debacle in Vietnam. Politicians make the decision to send our troops in, and then have second thoughts.

Posted by COindependent | Report as abusive

The United States has now come to realize the power of an absolute ruler via the conveyance of the Unitary Executive. A Unitary Executive that happens to be the first American dictator of African descent who has elected to make the justice of the Ku Klux Klan the law of the world. American exceptionalism strikes again.

Thanks for the enslavement, whipping and potential summary execution oh mighty institution of liberal justice as expressed by Judge Colleen McMahon of the U.S. District Court for the Southern District of New York.

Posted by zhmileskendig | Report as abusive

Americans,

We are living in the worst days for our country ever. Your rights are being taken away by a man who thinks he is the almighty.

FBI and CIA should you not be looking into this man? Where are the checks and balances of this once great nation? Surely there is a paper trail somewhere. He may think he is almighty, but he is still a man..

Senators and Governors: the TRUE AMERICAN people need your help to get rid of this man. Who is changing this great nation into something that NO TRUE AMERICAN wants.

He is a power hungry fool who is telling you and this great nation what he wants..We have NO kings here. He is bullying everyone or just taking what he wants.

I pray for GOD to help us in this time of distress for our once great nation.

Posted by afmom | Report as abusive

Obama is right here and evidently has matured. This is war with incredibly vicious religious fanatics (worst kind) who must be decimated even if they hide among civilians.

I was appalled when Obama made a big issue of waterboarding, which is known to be effective and has saved many lives. I wish, for the sake of many innocents, the Peter Pan liberals of this world would grow up.

Posted by CheckItOut | Report as abusive

These drone attacks are conducted, only if the leaders of Pakistan and Afghanistan allow them to, otherwise it is a clear act of war. Does US have the balls to attack Iran, China, Russia and any other country? NO, US preys on goverments that are easily corruptible i.e. Pakistan & Afghanistan, Yemen. These are the 3 countries that get US subsidies and consequently get a carte blanche from the ruling govts. to use drones in their country limits.
Shroud of secrecy from Obama? yes the recipient of the noble peace prize ironically.
Shame on the judge for her ruling, protecting democracy? I think not.

Posted by politicaljunkie | Report as abusive

Perhaps Iran should return a captured drone….over Washington DC…but used it like a Doodlebug from WW2 – wouldn’t know where or when it would land..with a BANG! Obamamamamama shouldn’t have an issue with that – after all he’s engaged in the prequel to WW3.

Posted by randburg100 | Report as abusive

America fought WW III against the Soviet Empire, and won.
That war was different from WWI and WWII, and consequently, both sides employed different means.
In case someone hasn’t noticed, for several years now America has been engaged in WWIV against Islamist terrorists. Again, this world war is different from previous wars America had fought, and the means employed by both sides are new and much different.
Using drones is the most humane, responsible, and cost effective tactic one can think of in such case. Besides, à la guerre comme à la guerre!

Posted by reality-again | Report as abusive

If their goals are complaint with US foreign policy goals they are called freedom fighters. Otherwise they are called terrorists. This is the most important and in fact only division. Sometimes terrorists killing innocent people found themselves astonished in freedom figters posiotions, just because geopolitics changed. What a pity sometimes it happeneds the other way round.
Absolute (military ) power corrupts absolutely, even democracies like US. Yes you are unique, superb etc. but this do not give you th elicence to kill.

Posted by Wantunbiasednew | Report as abusive

Instead of drones, we could train squads of commandos to highjack planes and fly them into buildings in kamakaze-like attacks.

Posted by brotherkenny4 | Report as abusive

@Brotherkenny4: You are absolutely right! How quickly we have forgotten the largest slaughter of U.S. civilians (not a single of them a fighter), intentionally inflicted on appr. 3,000 randomly picked, innocent American civilians, more than at Pearl Harbor? And this was planned and supported by the very people our drones are targeting. We did not start this method of warfare! And to the other posters here: How dare you criticize my hero, the best president this country has ever had, the man for whose re-election I worked tirelessly! If he says using drones is OK, that’s all I need to know. I don’t need to look at a bunch of copies of bureaucratic memos.

Posted by WalterA | Report as abusive