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What the Government Should Disclose About Its Targeted Killing Program

a drone
a drone
Jameel Jaffer,
Director, Knight First Amendment Institute
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March 29, 2013

This post originally appeared on Politico.

The U.S. Court of Appeals for the D.C. Circuit recently ruled that the Central Intelligence Agency may no longer refuse to acknowledge something that everyone knows to be true: the agency has “an interest” in the use of drones to carry out targeted killings. The CIA is unaccustomed to courts rejecting its secrecy claims, but in asking the courts to pretend that the agency might have no connection whatsoever to the targeted killing program, the agency dramatically overreached. Unsurprisingly, the appeals court was unwilling to give its “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.”

The immediate consequence of the appeals court’s ruling is that the CIA must answer a Freedom of Information Act request submitted by the American Civil Liberties Union more than three years ago — the agency must disclose records about the program or supply a legally sufficient justification for withholding them. But the ruling should trigger some deeper reflection within the Obama administration. Is the secrecy surrounding the killing program truly necessary? Shouldn’t the public know who is being killed, and why?

The administration owes the public a fuller account of the program. It should begin by releasing the legal memos that supposedly justify the program. In litigation, the government has acknowledged the existence of three memos; it has shown other memos to some members of Congress. Disclosure of the memos to the public — redacted, if necessary, to protect intelligence sources and methods — would help the public better understand who the government considers to be lawful targets and why the government believes the program to be consistent with domestic and international law.

The government should also disclose more information about how it selects its targets. Who decides whether any particular name is added to a “kill list”? Who reviews the decision? Who, in other words, should the public hold accountable?

Right now, the public does not know which officials to hold accountable or even what, exactly, to hold them accountable for. News stories have indicated that most deaths attributable to the targeted killing program are the result not of “targeted killings” in any literal sense, but of so-called “signature strikes” — strikes aimed at individuals or groups whose identities are unknown or unconfirmed but whose observed behavior matches certain profiles. The U.K.-based Bureau of Investigative Journalism has reported that in Pakistan, the CIA’s signature strikes have targeted rescuers and funerals. The administration should explain, with far more specificity than it has done so far, who it is that the CIA and Defense Department are actually trying to kill.

The administration should also release basic information about the program’s actual human impact. A senior member of the Senate Armed Services Committee recently acknowledged that the program has resulted in the deaths of 4,700 people; independent research groups estimate that as many as a quarter or those killed were civilians. To the extent the government knows who has been killed, it should disclose the names.

It should also release statistics indicating how many people have been killed, how many of these were “militants,” how many were “civilians” — and it should disclose the method by which it distinguishes the one category from the other. This is crucial because media accounts have said that the government understates civilian casualties by manipulating the labels. The New York Times reported last year, for example, that the CIA considers all military-aged men in “strike zones” to be combatants “unless there is explicit intelligence posthumously proving them innocent.”

Finally, the administration should disclose a list of the countries in which targeted killings have been carried out. John Brennan, now the CIA director, was asked in his confirmation hearing to give this list to Congress and seemed to say that he would do so after he was confirmed. But this list should be disclosed to the public, not just to Congress. It should go without saying that the public has a right to know in which countries our government is at war.

In his recent State of the Union address, President Obama said that he intended to be “even more transparent” about his administration’s counter-terrorism policies. Attorney General Eric Holder recently told Congress that the president intends to give a public address about the targeted killing program in the coming weeks. The time to deliver on the promise of transparency is now.

The release of more information would permit the public to better understand the program at the center of the administration’s counter-terrorism strategy. It would also allow us to better understand the nature of the war that we are fighting. As a federal judge in New York observed earlier this year in separate FOIA lawsuits brought by the ACLU and The New York Times, the release of more information would shed light on “the ill-defined but vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty.”

The government’s release of more information will not end the public debate about the killing program. Many people inside and outside the United States have profound concerns about the program, and the release of more information may allay some of these concerns but it will not allay all of them.

The public’s right to know, however, extends to controversial policies, not just to those that enjoy widespread support, and the government’s obligation to disclose and explain its policies is especially important when those policies involve the use of military force to kill in our name. We should not tolerate any longer a program under which the government kills unnamed people in unnamed lands for reasons it refuses to explain.

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