In the divided world of American politics, it's not easy to find an issue on which the legal affairs correspondent for the Nation and the former chairman of the American Conservative Union agree. But we've found one: the crucial importance of transparency in government, especially when the president claims the power to kill us without charges or trial, by directing the launching of a remote-control drone.
As this is Sunshine Week, a national initiative to promote dialogue about the importance of open government, what better time for the president to make good on his promise to lead the most transparent administration ever and tell us what's up with the drone policy? President Barack Obama claims he agrees with us on transparency. Shortly after taking office, Obama issued a memorandum to executive branch departments and agencies claiming his intention to "create an unprecedented level of openness in government." Transparency, the president explained, promotes accountability, encourages public engagement and furthers collaborative government.
But actions speak louder than words. For all these promises, when it comes to the most awesome power Obama has asserted thus far — the authority to kill American citizens and others without trial or charges — this administration has been anything but transparent.
It still has not even acknowledged that it killed Anwar Awlaki, a U.S. citizen who, according to news reports, was struck by a drone missile in Yemen on Sept. 30, 2011, after being on a White House "kill list" for more than a year. Obama apparently believes he has the power to kill U.S. citizens in secret. He has, according to reliable media reports, ramped up targeted killing far beyond that of any prior president. Yet his administration has resisted releasing even redacted versions of the 11 memos that we are told the Justice Department has drafted authorizing such killing.
When his choice for CIA director, John Brennan, faced confirmation resistance in the Senate (and after a "white paper" on the Justice Department's reasoning was leaked), the president reluctantly agreed to let members of the Senate Intelligence Committee review only the memos that authorized killing Americans. At first, he insisted these memos could be seen only by the senators and not their staffs, who have the expertise to assess them. After the senators objected, he let each senator show the memos to one staff member, but they could not retain copies or notes.
Obama has also authorized various officials in the executive branch to make public speeches that paint the broad outlines of a legal defense for the practice, but the devil is in the details, and the details remain hidden.
It took a filibuster by Sen. Rand Paul, R-Ky., to finally get Attorney General Eric H. Holder Jr. to provide a letter straightforwardly saying that the president cannot order the killing on U.S. soil of an American citizen not involved in active combat.
This is unacceptable in a democracy. Killing in wartime is, of course, permissible. But the U.S. has executed individuals with drones thousands of miles from any battlefield, in Yemen and Somalia. It claims the right to do so even where individuals pose no immediate threat to the nation's security, and until Holder's latest letter, it had refused to acknowledge any absolute limits on this right even as to U.S. citizens here at home.
There is simply no legitimate reason to withhold from the American people the legal rules and standards under which our government operates, particularly when asserting the power to take human life. Certainly aspects of national security programs should remain secret. The evidence collected in counter-terrorism operations, information showing our intelligence agencies' sources and methods, and the strategies government agents use to intercept terrorist plots are all appropriately protected as classified information.
But with targeted killing, the cloak of secrecy has been extended to cover the very rules themselves. That practice dangerously undermines our system of checks and balances. It makes robust oversight impossible. It excludes the public from meaningfully participating in or collaborating with their government. It breeds distrust. Secret law has no place in a democracy.