The transparency problem: the government will not tell you why it’s legal to kill you
By End the Lie
President Barack Obama has leveraged heavy rhetoric on the subject of transparency for some time now, even going as far as to publish on the official White House website that his “Administration is committed to an unprecedented level of openness in Government.”
If this is open government, I can’t begin to imagine what a closed government is.
After Anwar al-Awlaki was allegedly assassinated in Yemen, the New York Times sought to find out the legal basis for the Obama administration’s secretive “kill list” which apparently can now include United States citizens.
Keep in mind, al-Awlaki’s 16-year-old son born in Denver, Colorado, Abdulrahman al-Awlaki, was also killed. That means three Americans were killed in only three weeks in Yemen by U.S. drones.
The complaint, made by plaintiffs The New York Times Company, Charlie Savage, Scott Shane, and their undersigned attorney was filed after the United States Department of Justice (DOJ) refused to release agency records in response to a Freedom of Information Act (FOIA) request.
The plaintiffs contend that the requests were made properly and the DOJ improperly withheld the records which deal with the looming questions that surround the legality of so-called “targeted killing” under both American and international law.
The complaint cites “notable legal scholars, human rights activists, and current and former government officials [who] have called for the government to disclose its legal analysis justifying the use of targeted lethal force, especially as it applies to American citizens.”
I think that these questions are even more important in the aftermath of the House and Senate passing the National Defense Authorization Act for Fiscal Year 2012 (NDAA) which allows American citizens to be indefinitely detained without charge or trial.
The complaint states that the New York Times filed proper FOIA requests seeking memoranda detailing the legal analysis and supposed justification behind killing American citizens, both before and after the al-Awlaki killing.
As of the filing of the complaint on December 20, 2011, the DOJ refused to release any of these memos or even any portions of the memoranda, claiming that they were classified and privileged, and thus are exempt from disclosure under the FOIA guidelines.
Even more absurd, the DOJ has actually refused to either confirm or deny the existence of some of the memos entirely.
This is after the The Washington Post published a story on September 30, 2011 which stated, “The Justice Department wrote a secret memorandum authorizing the lethal targeting of Anwar al-Aulaqi,” which makes one wonder how The Washington Post knew such a thing when the DOJ refuses to even acknowledge any existence of the memo.
Peter Finn, the author of The Washington Post article stated that, “The document was produced following a review of the legal issues raised by striking a U.S. citizen and involved senior lawyers from across the administration. There was no dissent about the legality of killing Aulaqi, the officials said.”
Why are officials willing to anonymously discuss these contentious issues with reporters but not willing to account for their decisions to the American people, in accordance with U.S. law?
Clearly, the Obama administration considers their stance transparency to be as iron clad as the rest of his campaign promises; that is to say, not at all.
Finn’s article stated that the nameless officials refused to elucidate the exact legal analysis that brought them to the decision, including how they considered any Fifth Amendment right to due process.
More importantly, the article quoted a “former senior intelligence official” who said that the Central Intelligence Agency (CIA) “would not have killed an American without such a written opinion,” making it very unlikely that the DOJ does not possess such a document or cannot obtain it.
The complaint states that on October 7, 2011, Charlie Savage filed a FOIA request to the DOJ’s Office of Legal Counsel (OLC) which sought a copy of “all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for the United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.”
One thing that this statement doesn’t emphasize is that while al-Awlaki was clearly “radical” in his approach to Islam and rhetoric, there was never a charge or trial that actually proved beyond a reasonable doubt that he was a terrorist.
The entire point of the First Amendment is not that it protects your right to discuss last night’s football game, but instead to protect unpopular speech, which is definitely the type of speech which al-Awlaki was engaging in.
However, the despicable nature of what al-Awlaki was promoting does not somehow strip him of his right to a fair trial under the Fifth Amendment, something which is arguably one of the most vital rights protected by the Constitution, which was gravely injured – if not wiped out completely – by the NDAA.
Just 20 days after Savage filed his FOIA request on October 7, 2011 the DOJ denied his request by letter, leading to this last-ditch effort to bring some semblance of accountability to this issue.
The fact that there are memos of some sort is somewhat undeniable; given that on February 3, 2010, the Director of National Intelligence Dennis C. Blair testified to the House’s Permanent Select Committee on Intelligence that “we take direct actions against terrorists in the intelligence community. If we think that direct action will involve killing an American citizen, we get specific permission to do that.”
This quote is included in the complaint on page 6, clearly indicating that there is some sort of legal basis or analysis that they have utilized to justify their actions, while refusing to actually account for this to the American people.
I am obviously not the only one who finds this deeply unsettling, especially with the recent traitorous activities in the House and Senate which could result in such actions being taken against countless Americans who “officials have deemed … to be terrorists.”
A noteworthy issue to bring up here is that if al-Awlaki was indeed a terrorist – which again, is unproven beyond a reasonable doubt in a court of law – the American government has been directly dealing with and supporting terrorists, something which would make anyone involved eligible for indefinite detention under Section 1021 of the NDAA.
Indeed, the fact that al-Awlaki dined at the Pentagon on February 5, 2002, as exposed by – of all news agencies – Rupert Murdoch’s Fox News raises some larger questions about transparency and the so-called War on Terror, which is a total and complete sham.
Keep in mind that by July 2002, al-Awlaki was already under investigation for being sent funds by an individual who was the subject of a U.S. Joint Terrorism Task Force (JTTF) investigation and thus al-Awlaki was placed on a precursor to what is now referred to as the terror watch list.
According to ABC News, “A felony arrest warrant for radical Islamic cleric Anwar al Awlaki was rescinded in 2002 a day before he was intercepted as a terror suspect at New York’s JFK airport, forcing authorities to release him, according to sources familiar with the case. The warrant was cancelled by the U.S. Attorney’s Office in Denver, even though Awlaki was on a terror watch list, and even though the office’s supervising prosecutor for terror cases — who has now been appointed by the Obama administration as the U.S. Attorney in Denver — had been fully briefed on Awlaki’s alleged terror ties, according to investigators.”
al-Awlaki had also been investigated by the Federal Bureau of Investigation (FBI) in both 1999 and 2000, leading one to ask: how could such an individual be invited to dine at the Pentagon?
More importantly, why did the Department of Defense’s lawyer who vetted al-Awlaki write that she “had the privilege of hearing one of Mr. Awlaki’s presentations in November and was impressed by both the extent of his knowledge and by how he communicated that information and handled a hostile element in the audience”?
When Fox News attempted to reach the Office of General Counsel for comment on the meeting along with their vetting process, the Department of Defense claimed they did not have any additional information to provide.
This is where the transparency problem rears its ugly head once again and makes it hard to ignore the intimate ties between our government, which claims to be fighting terrorism, and the terrorists themselves.
The most absurd part is that Obama continues to claim that they are working towards transparency, and even going as far as to laughably criticize Mitt Romney for a lack of transparency.
Part of Obama’s re-election campaign is attempting to trick gullible Americans into thinking he is a populist, which to anyone who has followed his administration closely is simply ludicrous.
According to Talk Radio News, today the Obama for America campaign published a link to an editorial published in The Washington Post which accused Romney of being “zero for two when it comes to transparency in campaigning.”
This is clearly implying that Obama has a history of transparency, which once again is so obviously false it is almost painful to see his campaign continuing to leverage this absurdist claim.
I am far from the only one who has criticized the Obama administration for their lack of transparency.
Indeed, yesterday The Hill published a lengthy article entitled, “Watchdogs say Obama has not done enough on government transparency,” although the headline is a bit of an understatement given that Obama has in many ways made transparency even worse.
They pointed to the so-called “supercommittee” meeting on deficit reduction behind closed doors as a shining example of Obama’s “failing to keep his word on putting Congress’s work before the public.”
They also pointed out that Obama failed to uphold his promise to air healthcare negotiations live on C-SPAN, although I think the issues surrounding assassination of American citizens are much more pressing and dire than both of these examples combined.
“Over the past three years, federal agencies have gone to great efforts to make government more transparent and more accessible than ever, to provide people with information that they can use in their daily lives,” a spokesman for the White House, Eric Shultz, said in a statement.
Yet when it comes to the most critical issues of all, the federal agencies continue to stonewall the American people while still slyly implying that they indeed have the justification and analysis to back up their decisions all while refusing to provide them.
The brazenness of how our so-called government is refusing to account for killing Americans is nothing short of astounding, especially given the most recent developments which very well could label immense amounts of Americans as “belligerent” and thus “covered persons” under the NDAA.
As I have previously mentioned, the problem is not only that the language in the NDAA explicitly allows for the indefinite detention of American citizens without charge or trial on nothing more than suspicion – not to mention the ability to transfer such “covered persons” to any foreign nation or foreign entity they choose – but that we will likely never even know how the DOJ officially interprets the legislation.
This is far from baseless, empty speculation given that back in May Senator Ron Wyden, a Democrat from Oregon, revealed, “the government applies a far broader legal interpretation [to the PATRIOT Act] – an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged.”
The May Wired article said that the FBI passed the buck on commenting on any secret interpretations of the PATRIOT Act to the DOJ – the same agency which is now refusing to even comment on the existence of memos justifying the assassination of Americans.
Unsurprisingly, the DOJ stated it would not comment beyond a brief testimony before Congress from Todd Hinnen, the agency’s top national security official.
Hinnen’s testimony in no way cleared up exactly what this secret interpretation is and instead seemed much more like damage control.
During the testimony he said that the material they collect under the PATRIOT Act is individualized and specific, including: “driver’s license records, hotel records, car-rental records, apartment-leasing records, credit card records, and the like.”
Yet Hinnen also stated that the business-record provision of the PATRIOT Act “also” allowed “important and highly sensitive intelligence-collection operations” to be conducted.
This is the typical ambiguous language utilized by government officials to give them the mammoth wiggle-room to covertly abuse legislation and strip us of our rights at every available juncture.
If the American government has any hope of having legitimacy in the eyes of the citizens of the United States, or for that matter, the world at large, transparency needs to be one of the first issued addressed.
We are at a time of crisis in this nation: with economic collapse looming on the horizon thanks to criminals in the financial industry and the corrupt private Federal Reserve; de facto martial law thanks to a steadily militarized police force; the stripping of our most essential rights under the NDAA; comprehensive surveillance programs that include smartphones, centralized biometric databases, drone surveillance, citizen spying programs, and threat assessments; pending draconian internet legislation; dangerous domestic drone programs; and far too many other disturbing trends.
The total lack of transparency in our government is just one of the many symptoms of a disease which is wracking our nation and the world and to make matters even more absurd, for some strange reason our president was awarded the Nobel Peace Prize.
Without making this one simple change, likely the easiest thing to demand from our corrupt government, we will only see increasingly disturbing developments that will continue to undermine the foundations of our nation and put all of our lives – and those of future generations – in danger.
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