A federal appellate court's publication on Monday of the so-called "drone memo" finally allows the American public to evaluate the legal theories that were the basis for one of the Obama administration's most controversial acts – the extrajudicial killing of an American citizen.
Authored three years ago by the Justice Department's Office of Legal Counsel (OLC), the 41-page memo contends that the president has broad power to carry out the targeted killing of terrorism suspects, even in geographic areas far removed from conventional battlefields.
The publication of the memo is a victory for transparency – the result of hard-fought litigation by the American Civil Liberties Union and the New York Times. (I argued the ACLU's case before the appellate court.) It is a very rare thing for a federal court in the United States to order the release of information that the government contends is properly classified. In transparency litigation in the national-security sphere, the courts almost invariably defer. That the court declined to defer here suggests that it found the arguments from the Obama administration to be not simply unpersuasive but wholly without foundation.
But despite the release of the drone memo, the American public still does not have the information it needs in order to evaluate the lawfulness and wisdom of its government's policies. Indeed, to read through the memo is to be reminded of how successful the Obama administration has been at rationing even the most basic information.
Large parts of the memo – almost a third of it – have been redacted. The first 11 pages, which describe the government's allegations against al-Awlaki, are redacted in their entirety. Throughout the remainder of the memo, citations, sentences and even whole paragraphs have been stripped out, in some cases to protect genuine sources and methods but in others to obscure the precedents underlying the government's legal arguments. The redactions in the drone memo's footnotes are perhaps the most disturbing, because they suggest the existence of an entire body of secret law, a veritable library of authoritative legal opinions produced by Justice Department lawyers but withheld from the American public.
In one instance, the long sought-after drone memo references another legal memo that concluded that al-Awlaki's American citizenship did not "preclude the contemplated lethal action." From this reference, we can deduce that the OLC authored a separate drone memo assessing – and dispensing with – the proposition that an American citizen had the right not to be deprived of his life without some form of judicial process. But that earlier memo, treated by the executive branch as binding law, is still secret.
The American public will not be able to evaluate the lethal drone program without far more information:
- The government should disclose the list of countries in which it has carried out targeted killings.
- It should disclose records relating to bystander casualties, so that the public can judge for itself whether the government's targeting decision are as discriminating as the government says they are.
- It should disclose its investigative reports into past strikes – at least into those strikes that are reported to have resulted in bystander casualties.
- It should also disclose the OLC's other memos relating to the targeted-killing program – including the memos that relate to targets who are not American citizens. (The court that published the drone memo, notably, also ordered the government to submit other OLC memos for review and possible disclosure.)
- And it should disclose the factual record that led the OLC to conclude that the extrajudicial killing of Anwar al-Awlaki – again, an American citizen who was located far from any conventional battlefield – would be lawful.
But the release of the drone memo should not obscure the reality: we still know scandalously little about who the American government is killing, and why. Monday's ruling was a step forward – a gesture toward transparency – but unless it leads to much, much more from the drone files, it will be only that: a gesture.