DRONE WATCH: Law and Secrecy

John Brennan, President Obama’s counterterrorism advisor and nominee for CIA Director, is one of the architects of the administration’s drone policy. The New York Times and the ACLU recently lost a case in court that attempted to make public the secret legal memos that are claimed to justify the policy. The confirmation hearings coming up will offer another chance.

Salon reports that Sen. Ron Wyden, D-Ore., wrote a letter to Brennan in light of his nomination asking to see the legal opinions that justify killing American citizens.  He wrote:

“Senior intelligence officials have said publicly that they have to authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department’s Office of Legal Counsel and explain the basis of this authority. I have asked repeatedly to see these opinions, and I have been provided some relevant information on the topic, but I have yet to see the opinions themselves.”

From a broader viewpoint, Mary Ellen O'Connell, law professor at the University of Notre Dame and a specialist on the international law of armed conflict, expresses surprise that anyone would need to see the memos.  Comparing it to the legal memos that claimed to justify waterboarding and secret detention by the Bush administration, she writes:

“It is surprising to me that anyone feels the need to actually see these secret memos. International law clearly makes waterboarding, secret detention and targeted killing away from battlefields unlawful. The fact these practices have continued after the writing of the memos demonstrates the analysis is window dressing.”

But, she adds:

“The greater importance of the secret memos does not concern what they contain, but the fact our democratic government believes legal analysis can be secret -- that how the government understands the law that regulates its conduct need not be made public.”