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.
 
I f 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