by John Glaser
The Obama administration has a good thing going. They get to run a futuristic drone war that operates above the law and allows them to bomb people outside any official theater of conflict, even if they are American citizens with Constitutional rights to due process. When the drone war produces a juicy nugget that is perfect for some jingoistic war propaganda, they get to sing it from the mountaintops. When the press asks them uncomfortable questions about it, however, or when concerned parties file suit against the administration, they get to say the drone program is classified and avoid any public or legal scrutiny.
Tomorrow, the American Civil Liberties Union will be in court with the government, specifically the CIA, over this little scam they’re running. The ACLU has tried to file Freedom of Information Act requests to get information on the drone program and its legal basis, but the government has said ‘no, it’s secret.’ The ACLU is now returning fire in court, arguing that if administration officials get to selectively talk about the drone war in speeches and to reporters, it can’t then turn around and say the program is too secret to comply with FOIA requests.
“The notion that the CIA’s targeted killing program is a secret is nothing short of absurd,” said ACLU Deputy Legal Director Jameel Jaffer, who will argue the case before a three-judge panel of the D.C. Circuit Appeals Court. “For more than two years, senior officials have been making claims about the program both on the record and off. They’ve claimed that the program is effective, lawful and closely supervised. If they can make these claims, there is no reason why they should not be required to respond to requests under the Freedom of Information Act.”
The ACLU’s demand for details of the programme – including documents related to its legal justification drawn up by the department of justice – is aimed at prompting a national debate on the scope of the drone programme and how it is used. Its legality is a particular issue. The memorandum justifying the legal basis for the targeted killing has now been requested by at least 10 members of Congress and three different lawsuits but it remains so secret that that acknowledging its existence is a classified matter. “The public has a right to decide for itself whether or not the programme is lawful or moral,” Jaffer said.
I’d be hard pressed to find a more clear-cut case of violating the checks and balances intended in the Constitution. Congress has been sidestepped and ignored. The court’s have been circumvented through absurd and contradictory state secrets privileges. Unfortunately, brave and independent federal judges like Judge Katherine B. Forrest, who tried to block enforcement of the government’s new detention powers in the NDAA, are few and far between. Still, the ACLU has a pretty strong case, so we’ll have to see if the judges in the DC Circuit Appeals Court tomorrow get pressured into granting the Executive Branch the power to skirt all accountability and wage a secret, lawless war.