WikiLeaks and the Drone Strike Transparency Bill

Sarah Knuckey, Director of the Project on Extrajudicial Executions at New York University School of Law and a Special Advisor to the UN Special Rapporteur on extrajudicial executions, calls this provision "an important step toward improving transparency," and notes that "Various U.N. officials, foreign governments, a broad range of civil society, and many others, including former U.S. Department of State Legal Advisor Harold Koh ... have called for the publication of such basic information."

This provision could be offered as an amendment in the Senate to the National Defense Authorization Act. It could be offered in the House as an amendment on the intelligence authorization, or as a freestanding bill. But it's not likely to become law unless there's some public agitation for it (you can participate in the public agitation here.)

Forcing the Administration to publish information is crucial, because in the court of poorly informed public opinion, the Administration has gotten away with two key claims that the record of independent reporting strongly indicates are not true: 1) U.S. drone strikes are "narrowly targeted" on "top level terrorist leaders," and 2) civilian casualties have been "extremely rare." Poll data shows that majority public support of the drone strike policy is significantly based on belief in these two false claims; if the public knew that either of these claims were not true, public support for the policy would fall below 50%. By keeping key information secret, the Administration has been able to avoid having its two key claims in defense of the policy refuted in media that reach the broad public.

You might think that if a key reason that it's been difficult to do anything politically in the U.S. about the drone strike policy has been the apparent public support for the policy among people who do not know that the strikes have not been "narrowly targeted" on "top level terrorist leaders" and who do not know that civilian casualties have not been extremely rare, then if there were a proposed transparency reform that could force the Administration to disclose information that would likely contribute greatly to knowledge among the general public that these two key claims are not true, it should be a no-brainer that critics of the policy should vigorously support this reform.

Sadly, it is not, apparently, a no-brainer, because there are people who claim that transparency reforms are meaningless. And while it is tempting to try to ignore such people, they have a disproportionate impact to their numbers because most people don't have the life experience that would enable them to easily judge between the competing claims "transparency reforms are important" and "transparency reforms are meaningless." Our starting point is that many Americans, compared to Europeans, are politically disengaged, alienated from political engagement most of the time. So when you put out a call for people to engage Congress, you have a group of people who get it right away and take action, and a another group of people who think, "Engage Congress? Not that again," and treat it as a huge personal sacrifice to engage Congress, like you asked them to volunteer for a root canal. These people are looking for any excuse to not take action. So if someone pops up and says, "transparency reforms are meaningless," these people have an excuse not to take action. "Oh, this proposed reform is controversial, not everyone agrees, so I don't have to do anything."

To people who want to claim that transparency reforms are meaningless, I want to say this: tell it to WikiLeaks. What was the fundamental strategic idea of WikiLeaks? What was the fundamental insight that Julian Assange deeply grasped that caused him to initiate this project, at great personal risk to himself and his close collaborators? It was that governments are hiding key information that the public has the right to know, that allowing governments to continue to hide this information fundamentally undermines democratic accountability, and that forcing this information into public debate fundamentally enables democratic accountability.

Case in point: Just Foreign Policy issued a crowd-sourced reward for WikiLeaks to publish the secret negotiating text of the Trans Pacific Partnership agreement, which, among many other concerns, critics like the AARP have charged threatens the ability of the U.S. government to make medicines safe and affordable under the Affordable Care Act. This week, WikiLeaks delivered, publishing the negotiating text of the "intellectual property" chapter of the TPP, the most controversial part of the agreement, including the negotiating positions of different countries. (If you made a pledge to the reward, you can fulfill your pledge here. )

Publishing this information generated a lot of press. (Google "WikiLeaks and TPP.") It also allowed critics of the agreement, like Public Citizen, Doctors Without Borders, and the Electronic Frontier Foundation to respond directly to the TPP text in making their criticisms.

Predictably, some journalists wrote what they often write about such disclosures: that there was nothing really shocking for insiders who were closely following the issue. And, in a narrow sense, that's not untrue. But it missed the point. In general, disclosing "secret" government policies mostly isn't about educating journalists and other insiders who are closely following the issues. It's about educating the broad public, which never saw this information clearly presented in major media. In a democracy, it's hard to keep the basics of important public policies secret from well-informed people who are following closely. Official secrecy is mainly about keeping them from the broad public, because official secrecy allows the government to keep the broad public in a fog of competing claims that can't be directly verified and are therefore never resolved in major media. Critics charge that X, but the government denies it. Who knows for sure?

The New York Times recently had an editorial in favor of the TPP. Critics complained, saying: 1) either you're endorsing an agreement that you've never seen or 2) you have seen the agreement, and instead of doing journalism, you're collaborating in keeping the public in the dark. No, we haven't seen the agreement, the Times responded. We're just endorsing the idea of an agreement. Never mind what the actual agreement is. That's the kind of "public debate" you can have when the policy is secret - whether you like the official story about the policy, rather than the actual policy. (Now that part of the TPP text has been leaked, the Times is quiet.) This is the same problem we face with the drone strike policy: people like the official story about the drone strike policy, in which drones are a magic super-weapon that only kills terrorist leaders and not civilians, not the actual policy, about which they have no idea.

When Edward Snowden leaked information about the NSA's blanket surveillance on Americans, many insiders said, "Yeah, we thought the NSA was doing that, we couldn't prove it, but no-one who follows the NSA was surprised." But the broad public had no clue, because it had never been clearly reported where most people could see it, because critics' claims couldn't be directly verified. When Snowden blew the whistle, the broad public found out, and that's why it's plausible that Congress will now force a change in policy. And that shows that transparency matters.

Where we are now with the drone strike policy is where we were with the NSA before Snowden's revelations: insiders know what's going on, but the broad public doesn't.

An illustration: earlier this week, I and others engaged in some "street lobbying" of Jeh Johnson, President Obama's nominee to head the Department of Homeland Security. When he was previously in government, Johnson was the Pentagon's top lawyer, and thus participated in constructing the Administration's purported legal justifications for the drone strike policy (which still have not been fully disclosed to Congress and the public.) Now, as head of DHS, he's not going to play that role directly. But he's still going to have significant influence, because he'll be in the meeting of the national security department heads, because he's well-connected, and because, by his own account, he cares deeply about the rule of law and working to ensure that the drone strike policy transparently complies with the rule of law. I was lobbying Johnson to support the drone strike transparency bill, so that the Administration would have to disclose information about civilian casualties. He said he would look into the bill and consider it.

During the discussion, one of my colleagues challenged Johnson about a particular drone strike. Johnson gave the standard Administration defense, about people who are planning to attack the United States. I interrupted him: "That's a small percentage of the people being killed by drone strikes."

"That's true," Johnson said.

That's true. When I called him on it, Johnson immediately conceded that the story that the drone strike policy is all about narrowly targeting people who are trying to attack the United States is basically not true. It's true that the U.S. has tried to target some people who have attacked or tried to attack the United States. But that's a small percentage of the people who have been killed. And so, in the main, that's not what the drone strike policy is about; in particular, the claim that drone strikes have been "narrowly targeted" on "top level terrorist leaders" is not true. ("I believe it very likely that one of my enemies is standing in that crowd of 50 people, therefore I am going to blow up the crowd" does not constitute "narrow targeting.")

Why would Johnson concede to me that a central Administration claim in defense of its drone strike policy is basically not true?

Because he wasn't giving an interview to a mainstream journalist. He was just talking to some guy on a street corner who wasn't recording what he was saying, a person who had little presumed ability to reach the broad American public, a person who could, at worst, tell some mainstream journalist what Johnson said, which Johnson could then promptly deny. He could say he was misquoted or misunderstood, and life would go on. And so we're left with the usual fog. Critics say X, U.S. officials deny it. Who really knows what the truth is?

Johnson was having an insider conversation, conceding that which all insiders know, but which the broad public does not know: the drone strike policy is not narrowly targeted on people who are trying to attack the United States.

That's why we need to force the Administration onto the public record to document its claims. If the Administration wants to claim that civilian casualties from drone strikes have been extremely rare, and that those killed were mainly people trying to attack the U.S., make them show us their numbers, and how they arrived at them. Pass the drone strike transparency bill.