From Attorney General Eric Holder’s testimony before the Senate Judiciary Committee last week, we learned that the Obama administration is “struggling” with how to provide more information on its so-called targeted killing program; that senior officials have “talked about a greater need for transparency” about the program; and that we “will hear the president speak about this” in the future. After a limited document review by the Senate intelligence committee; a spirited 13-hour filibuster led by Sen. Rand Paul (R-Ky.); and a last-minute admission by Holder that the president does not have the authority to use drones to kill a U.S. citizen on American soil who is not engaged in combat, the White House is still bobbing and weaving on whether to share with Congress the legal opinions and memorandums governing targeted killing, which include the legal justification for killing U.S. citizens without trial.
The Obama administration is wrong to withhold these documents from Congress and the American people. I say this as a former White House chief of staff who understands the instinct to keep sensitive information secret and out of public view. It is beyond dispute that some information must be closely held to protect national security and to engage in effective diplomacy, and that unauthorized disclosure can be extraordinarily harmful. But protecting technical means, human sources, operational details and intelligence methods cannot be an excuse for creating secret law to guide our institutions.
In refusing to release to Congress the rules and justifications governing a program that has conducted nearly 400 unmanned drone strikes and killed at least three Americans in the past four years, President Obama is ignoring the system of checks and balances that has governed our country from its earliest days. And in keeping this information from the American people, he is undermining the nation’s ability to be a leader on the world stage and is acting in opposition to the democratic principles we hold most important.
This is why I say, respectfully: Give them up, Mr. President.
Begin by fully sharing with the congressional committees that have jurisdiction all of the documents used by your administration to legally substantiate and govern the targeted killing program, including the justification for targeting U.S. citizens. The law that directs our government’s activities should not be kept secret.
All branches of the people’s government have the right to know the rules and standards under which the other branches act. Congress has the power to oversee the conduct of the executive branch, and lawmakers must be permitted to use it. As Woodrow Wilson wrote: “The informing function of Congress should be preferred even to its legislative function.” Appropriate congressional oversight is critical in building long-term credibility with the public across the political spectrum for the actions the administration undertakes in the people’s name.
This isn’t to say that the executive branch is obligated to disclose information on operational details or case-specific profiles that are, deservedly, highly classified. But that information can be redacted without undermining the public’s understanding of the legal justification on which the government’s actions are based.
The American people have the right to know the laws they live under. In addition to allowing Congress to properly fulfill its oversight duties, the administration should make available to the public the criteria justifying the targeted killing of Americans and the safeguards put in place to protect against wrongful death.
This level of transparency is important for our democracy and for governments around the globe. The United States is not the only country with drone technology. We are not the only country with the ability to deploy cyberweapons. We are not the only country grappling with how to apply the rule of law — and the laws of war — when the nature of conflict has changed dramatically, and in a short time.
But we cannot lead if the American people are kept in the dark. We cannot lead if the world does not know the principles and laws that guide us, or if others can credibly say that our commitment to a government of the people, by the people and for the people is simply window-dressing, or that we sacrifice our constitutional principles when it is expedient.
James Madison said that “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy; or, perhaps, both.”
March 16 is Madison’s birthday. Mark it, Mr. President, by upholding the promise of openness and transparency you made in your State of the Union address last month. Release the legal guidance governing your targeted killing programs, including the justifications for targeting Americans, and take charge of the informed, free and vigorous debate that undoubtedly will follow.
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