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Washington has many "secrets," but few secrets. The Obama administration will face a test on the difference this month, in a case probing a major national security program.
The administration is defending a federal court challenge to one of its most significant operations in the war against Al Qaeda: the drone program of targeted killings. President Barack Obama's lawyers insist the entire program is a "secret" -- so it can't even be hauled into court in the first place.
We know the program exists, however -- thanks to the president's own statements. We even know a little about how it works, based on the many leaks that drove detailed coverage of the drone killings, including that big New York Times expose on how the "kill list" is made. Whether those leaks were illegal disclosures or acceptable protocol -- often a political distinction -- took on a new urgency Friday, when the Justice Department announced an investigation into the administration's endangered secrets.
For a program that has reportedly killed more than 2,000 people -- including U.S. citizens as young as 16 -- with unmanned aircraft, getting into details in public, for the first time, might offer more shock than awe. After all, Obama campaigned on transparency and "rejecting a false choice between fighting terrorism and respecting habeas corpus."
To that end, Washington insiders are focused on who is leaking. Is it senior Obama aides intent on burnishing the president's image, as Sen. John McCain (R-Ariz.) alleged? Is it military officials seeking a strategic edge? To win its case under current law, however, the White House must do more than say it didn't authorize the recent leaks. It must prove that no one in the administration has "officially acknowledged" the program.
In their court filings, Obama's lawyers made two big claims that will surprise anyone who clicks through the day's headlines.
Not only do they say no government officials have acknowledged the drones -- they double down and declare that there may not even be a drone program.
In legalese, that translates to: "The CIA can neither confirm nor deny the existence or nonexistence [of the drone program or related records]." That's what the DOJ recently told a federal court in Washington -- based on the premise that a confirmation or denial would jeopardize national security.
It's gotten harder to take the nonexistence claim seriously, of course, after all the recent news reports and public debates over drones. In fact, the administration's press strategy may have boomeranged and eviscerated Obama's legal position, according to the White House's legal adversaries.
Take the American Civil Liberties Union, which successfully sued the administration for the torture memos and is now litigating a Freedom of Information request about the drones. The civil libertarians now think that their opponents in government did them a favor.
"The volume and consistency of media leaks relating to the CIA's drone program," says the ACLU's new brief, "strongly suggest that the government is relying on [a secrecy] doctrine in this court while government officials ... disclose selected information about the program to the media."
In other words, you can't have a press release one day and a state secret the next. That would be downright Orwellian. Or Kafkaesque. Or, just silly, according to the ACLU's lead lawyer, Jameel Jaffer.
"It's beyond absurd," Jaffer told POLITICO, "that the administration continues to say in court that this program is a secret, when every day senior officials are talking about the program in the newspapers."
The administration has to file papers reconciling its now well-known secrets by June 20. A loss could force Obama's lawyers to release vital information about the drone program -- from its supposed legal basis to the facts used to select the enemies of the state.
For a program that has reportedly killed more than 2,000 people -- including U.S. citizens as young as 16 -- with unmanned aircraft, getting into details in public, for the first time, might offer more shock than awe. After all, Obama campaigned on transparency and "rejecting a false choice between fighting terrorism and respecting habeas corpus."
On drones, however, he seems to be governing in the dark. Obama is not only scrapping due process for detention in habeas corpus -- he's overseeing the killing of Americans before they are even detained. That is largely unprecedented. It may be unconstitutional.
Jaffer, who directs the ACLU's Center for Democracy, says the issue comes down to a fundamental question: Should any president have the power "to kill suspects on the basis of secret legal standards and facts that are never disclosed to the public or any court?"
Right now, the administration's answer is yes.
But that's a secret.
© 2023 Politico
Washington has many "secrets," but few secrets. The Obama administration will face a test on the difference this month, in a case probing a major national security program.
The administration is defending a federal court challenge to one of its most significant operations in the war against Al Qaeda: the drone program of targeted killings. President Barack Obama's lawyers insist the entire program is a "secret" -- so it can't even be hauled into court in the first place.
We know the program exists, however -- thanks to the president's own statements. We even know a little about how it works, based on the many leaks that drove detailed coverage of the drone killings, including that big New York Times expose on how the "kill list" is made. Whether those leaks were illegal disclosures or acceptable protocol -- often a political distinction -- took on a new urgency Friday, when the Justice Department announced an investigation into the administration's endangered secrets.
For a program that has reportedly killed more than 2,000 people -- including U.S. citizens as young as 16 -- with unmanned aircraft, getting into details in public, for the first time, might offer more shock than awe. After all, Obama campaigned on transparency and "rejecting a false choice between fighting terrorism and respecting habeas corpus."
To that end, Washington insiders are focused on who is leaking. Is it senior Obama aides intent on burnishing the president's image, as Sen. John McCain (R-Ariz.) alleged? Is it military officials seeking a strategic edge? To win its case under current law, however, the White House must do more than say it didn't authorize the recent leaks. It must prove that no one in the administration has "officially acknowledged" the program.
In their court filings, Obama's lawyers made two big claims that will surprise anyone who clicks through the day's headlines.
Not only do they say no government officials have acknowledged the drones -- they double down and declare that there may not even be a drone program.
In legalese, that translates to: "The CIA can neither confirm nor deny the existence or nonexistence [of the drone program or related records]." That's what the DOJ recently told a federal court in Washington -- based on the premise that a confirmation or denial would jeopardize national security.
It's gotten harder to take the nonexistence claim seriously, of course, after all the recent news reports and public debates over drones. In fact, the administration's press strategy may have boomeranged and eviscerated Obama's legal position, according to the White House's legal adversaries.
Take the American Civil Liberties Union, which successfully sued the administration for the torture memos and is now litigating a Freedom of Information request about the drones. The civil libertarians now think that their opponents in government did them a favor.
"The volume and consistency of media leaks relating to the CIA's drone program," says the ACLU's new brief, "strongly suggest that the government is relying on [a secrecy] doctrine in this court while government officials ... disclose selected information about the program to the media."
In other words, you can't have a press release one day and a state secret the next. That would be downright Orwellian. Or Kafkaesque. Or, just silly, according to the ACLU's lead lawyer, Jameel Jaffer.
"It's beyond absurd," Jaffer told POLITICO, "that the administration continues to say in court that this program is a secret, when every day senior officials are talking about the program in the newspapers."
The administration has to file papers reconciling its now well-known secrets by June 20. A loss could force Obama's lawyers to release vital information about the drone program -- from its supposed legal basis to the facts used to select the enemies of the state.
For a program that has reportedly killed more than 2,000 people -- including U.S. citizens as young as 16 -- with unmanned aircraft, getting into details in public, for the first time, might offer more shock than awe. After all, Obama campaigned on transparency and "rejecting a false choice between fighting terrorism and respecting habeas corpus."
On drones, however, he seems to be governing in the dark. Obama is not only scrapping due process for detention in habeas corpus -- he's overseeing the killing of Americans before they are even detained. That is largely unprecedented. It may be unconstitutional.
Jaffer, who directs the ACLU's Center for Democracy, says the issue comes down to a fundamental question: Should any president have the power "to kill suspects on the basis of secret legal standards and facts that are never disclosed to the public or any court?"
Right now, the administration's answer is yes.
But that's a secret.
Washington has many "secrets," but few secrets. The Obama administration will face a test on the difference this month, in a case probing a major national security program.
The administration is defending a federal court challenge to one of its most significant operations in the war against Al Qaeda: the drone program of targeted killings. President Barack Obama's lawyers insist the entire program is a "secret" -- so it can't even be hauled into court in the first place.
We know the program exists, however -- thanks to the president's own statements. We even know a little about how it works, based on the many leaks that drove detailed coverage of the drone killings, including that big New York Times expose on how the "kill list" is made. Whether those leaks were illegal disclosures or acceptable protocol -- often a political distinction -- took on a new urgency Friday, when the Justice Department announced an investigation into the administration's endangered secrets.
For a program that has reportedly killed more than 2,000 people -- including U.S. citizens as young as 16 -- with unmanned aircraft, getting into details in public, for the first time, might offer more shock than awe. After all, Obama campaigned on transparency and "rejecting a false choice between fighting terrorism and respecting habeas corpus."
To that end, Washington insiders are focused on who is leaking. Is it senior Obama aides intent on burnishing the president's image, as Sen. John McCain (R-Ariz.) alleged? Is it military officials seeking a strategic edge? To win its case under current law, however, the White House must do more than say it didn't authorize the recent leaks. It must prove that no one in the administration has "officially acknowledged" the program.
In their court filings, Obama's lawyers made two big claims that will surprise anyone who clicks through the day's headlines.
Not only do they say no government officials have acknowledged the drones -- they double down and declare that there may not even be a drone program.
In legalese, that translates to: "The CIA can neither confirm nor deny the existence or nonexistence [of the drone program or related records]." That's what the DOJ recently told a federal court in Washington -- based on the premise that a confirmation or denial would jeopardize national security.
It's gotten harder to take the nonexistence claim seriously, of course, after all the recent news reports and public debates over drones. In fact, the administration's press strategy may have boomeranged and eviscerated Obama's legal position, according to the White House's legal adversaries.
Take the American Civil Liberties Union, which successfully sued the administration for the torture memos and is now litigating a Freedom of Information request about the drones. The civil libertarians now think that their opponents in government did them a favor.
"The volume and consistency of media leaks relating to the CIA's drone program," says the ACLU's new brief, "strongly suggest that the government is relying on [a secrecy] doctrine in this court while government officials ... disclose selected information about the program to the media."
In other words, you can't have a press release one day and a state secret the next. That would be downright Orwellian. Or Kafkaesque. Or, just silly, according to the ACLU's lead lawyer, Jameel Jaffer.
"It's beyond absurd," Jaffer told POLITICO, "that the administration continues to say in court that this program is a secret, when every day senior officials are talking about the program in the newspapers."
The administration has to file papers reconciling its now well-known secrets by June 20. A loss could force Obama's lawyers to release vital information about the drone program -- from its supposed legal basis to the facts used to select the enemies of the state.
For a program that has reportedly killed more than 2,000 people -- including U.S. citizens as young as 16 -- with unmanned aircraft, getting into details in public, for the first time, might offer more shock than awe. After all, Obama campaigned on transparency and "rejecting a false choice between fighting terrorism and respecting habeas corpus."
On drones, however, he seems to be governing in the dark. Obama is not only scrapping due process for detention in habeas corpus -- he's overseeing the killing of Americans before they are even detained. That is largely unprecedented. It may be unconstitutional.
Jaffer, who directs the ACLU's Center for Democracy, says the issue comes down to a fundamental question: Should any president have the power "to kill suspects on the basis of secret legal standards and facts that are never disclosed to the public or any court?"
Right now, the administration's answer is yes.
But that's a secret.