Prying open drone secrets

By Ari Melber
March 18, 2013

A federal appeals court rebuffed the Obama administration’s drone policy on Friday, ruling that the CIA stretched its considerable secrecy powers “too far.”  The stinging decision may be the biggest news in the war on terror that you’ve never heard about.

The ruling lays down a key marker for a significant shift in counterterrorism policy. Under President Barack Obama, the United States has moved from detaining suspected terrorists to killing many of them in targeted attacks. There were 10 times as many drone deaths in 2010 as 2004, according to the Counterterrorism Strategy Initiative.  This is why there are now fewer pressing questions about detention or Guantanamo, a vestige of post-September 11 battles. The United States hardly ever captures any new terror suspects.

The politicians and the chattering class, however, have been slow to recognize  this shift.

Congress still keeps reauthorizing bans against transferring Guantanamo detainees into the United States, a backward-looking restriction that hampers prosecutions. Meanwhile, it has failed to pass any laws to meaningfully oversee drone killings. The media has also overlooked the president’s expanding authority to order killings without any oversight by the other branches of government.

That left a vacuum.

Most Republicans gave Obama a pass on executive power. A few Democrats objected, primarily through careful letters. The White House simply ignored many of them, as Senator Ron Wyden (D-Ore.) documented.  So the loudest stand on the issue was left to Senator Rand Paul (R-Ky.), in his instantly infamous filibuster this month.

Paul raised some important questions – but Washington focused on the politics. He united Democrats, frustrated with a pattern of selected outrage against Obama, and splintered his Senate colleagues, who ranged from angry solidarity (Ted Cruz [R-Texas]) to angry embarrassment (John McCain [R-Ariz.]).  This new court ruling, however, signals a different opening.

The Washington Court of Appeals is second only to the Supreme Court in prestige and authority over how the federal government operates. It is often deferential to national security arguments, and on drones, it was hearing a case Obama had won in lower court. Yet, a bipartisan panel unanimously ruled against the administration – partly because all the public debate over drones served to undermine the administration’s bizarre defense of aggressive secrecy.

There is no easy way to describe the CIA’s argument in the case without making it sound bad.

The intelligence agency literally told the court that it could not respond to a request for drone documents because the program may not exist. Even to discuss the request, without releasing documents, would compromise the (potential) program’s secrecy.

That kind of defense can work for genuine secrets. It makes no sense, however, for a program that’s been discussed everywhere from congressional hearings to the president’s own “Google Hangout.” In fact, the court cited that hangout to note that Obama “himself publicly acknowledged that the United States uses drone strikes.”

The White House wanted it both ways – pretend drones are a secret to duck court oversight, then tout them as a tough security tactic in the public debate. The court basically told Obama’s lawyers to take a hike on that argument.  In judicial-speak, that translates to this: “The CIA [proposed] a fiction of deniability that no reasonable person would regard as plausible.”

Implausible fiction is a very diplomatic smackdown.

Until last week, it may have been fairly easy to dismiss Paul or the civil libertarians or the pacifists.  (Picking extreme detractors as the face of the opposition is an old tactic, anyway.)  Yet this federal appeals court rebuke is harder to ignore, not only as a matter of law – the administration must now discard its “fiction,” and provide a measured secrecy defense back in the lower court – but also in the public debate over the secretive kill list.

It is not the only crack in the administration’s policy, either. The White House had lost a major ally in this fight two days before this ruling.

If you drew one circle of Obama’s most trusted confidantes, and another for White House officials who have wrestled with the toughest security and secrecy dilemmas, John Podesta, chairman of the Center for American Progress, would be smack in the middle. The former White House chief of staff, a Democratic heavyweight, was tapped by Obama to head his transition team.

So it was widely noticed when Podesta wrote in a Washington Post Opinion piece, though “some information must be closely held to protect national security,” Obama “is ignoring the system of checks and balances” that governs the country, and is undermining accountability with excessive drone secrecy.

Podesta’s very public argument suggests his private appeals were ignored. After all, this is not a man who needs a newspaper to get his words to the West Wing. He can email. Or drop in. (Podesta has been to the White House 94 times since Obama’s election, including a dozen to see the Big Guy.)

The confluence of well-meaning criticism – Podesta wants Obama to succeed in every way – and judicial pushback could provide an opening for Obama to correct course.

“The ruling,” said Jameel Jaffer, the ACLU attorney who argued the case, “provides the administration with an opportunity to reconsider both the secrecy surrounding the program and the scope of the program itself.”

It has happened before. A lawsuit seeking records on interrogation and torture led Obama early in his presidency to release key legal memos from the Bush era.  The comparison has its limits, though. This time, the records are about Obama’s own actions – not his predecessor.

But that is always the true test of transparency: Shining a light on yourself.

PHOTO (Top): President Barack Obama nominates White House counterterrorism adviser John Brennan (R) to be the next CIA director at the White House in Washington January 7, 2013. REUTERS/Kevin Lamarque

PHOTO (Insert): Senator Rand Paul (R-Ky.) speaking at the Conservative Political Action Conference (CPAC) at National Harbor, Maryland March 14, 2013. REUTERS/Kevin Lamarque

PHOTO (Insert B): John Podesta when he was serving as co-chairman of President-elect Barack Obama’s transition team, in Chicago, November 7, 2008. REUTERS/Carlos Barria







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Why does it matter what the law is if following it is “optional” for those who find it “inconvenient”? Is there anyone who has not encountered an “inconvenient” law?

Why is obeying a street thug with a gun any different if they wear a uniform or not, or which uniform they wear? They both shoot you equally dead — the one place where equality is not a fantasy. We are all equal in the eyes of the gravedigger, if to no one else.

Does the caliber of the pistol used to blow your head off really matter? Or whether it is a pistol or a missile fired from a drone? What part of killing by whim do you not understand? Why do you think juries are required? They are required because you cannot trust authorities. Got it? All authorities. Juries are the difference between law and tyranny. Not “laws”. Juries.

Posted by usagadfly | Report as abusive

Domestic drone usage is ill-conceived, elitist, and end-runs our inherent Constitutional protections.

Here are two (2), very well-produced, videos that anchor my points:

Emmy Award-winning newscaster Shad Olson’s ‘The Great Drone Debate’, featuring US Senator John Thune: ao

Here’s a mind-blowing, well-done animated short that really captures our collective angst that if the road to hell is paved with good intentions, then domestic drones are a superhighway to an Orwellian panoptic gulag.

For national security purposes, Americans are already subject to warrantless wiretaps of calls and emails, the warrantless GPS “tagging” of their vehicles, the domestic use of Predators or other spy-in-the-sky drones, and the Department of Homeland Security’s monitoring of all our behavior through “data fusion centers.”  /ff_nsadatacenter/

America’s promise has always been the power of the many to rule, instead of the one. Ungoverned drone usage, particularly domestically, gives power to the one. 

Posted by sam2sam | Report as abusive

Those who would try to expose our military drone secrets and methods that protect the US to our enemies, are TRAITORS.
That includes judges.
The ACLU is a known communist organization who’s goal is destruction of our democracy.

Posted by americanguy | Report as abusive

@americanguy Well then sunshine, barry himself is a traitor as HE was the person spouting off in the media about it. Duh!

Posted by stambo2001 | Report as abusive

Congress doesn’t want to do its job of oversight. The White House wants to keep things secret. Most Americans don’t care, especially if they are told they are being kept safe by not knowing.

It then remains up to the Courts to protect the Constitution. I don’t hold out a lot of hope when it hits the Supreme Court. After all, ruling against Obama only protects people, not corporations. And while Corporations are ‘people’, they have been given special status. And they make the drones, and reap the profits.

Posted by pavoter1946 | Report as abusive


You sound like a raving lunatic. Worse, you seem to have zero understanding of what democracy is. ZERO. In fact, you would fit in well in any authoritarian regime where those in power do what they like, make and break rules as they see fit and deem themselves above the law.

“The intelligence agency literally told the court that it could not respond to a request for drone documents because the program may not exist. Even to discuss the request, without releasing documents, would compromise the (potential) program’s secrecy.”

This is Dr.Strangelove level absurdity from our ruling class. Obama being a continuation of Bush in this regard.

Posted by TheUSofA | Report as abusive

@americanguy – your values are not American.

Posted by JoeOvercoat | Report as abusive

I for one think it would be great to publish the in full, put the fear of death into those that would mean us (the West) harm for no other reason than we do not follow Sharia. That will be the final turning point in this struggle, because they don’t fear us now and will therefore never back down – once they begin to fear us they will back down. Make the kill list VERY public and plaster it all over the Arab world – as each name on the list is crossed off they can see how effective the program is. We’ll see how many new recruits sign up for up al Qa’ida training after that.

Posted by CDN_Rebel | Report as abusive