White House Attempts Again To Do In Secret What Requires Transparency, Law

For the last year, the Administration has been grasping at ways to give its drone program the semblance of legal and moral justification. It started a year ago with a debate in the Situation Room over how to provide transparency on the drone program without hurting the Administration’s legal stance refusing transparency.

The calls for transparency in discussing the Awlaki strike were batted away at first. But behind the scenes, several prominent lawyers in the national-security bureaucracy began lobbying their colleagues and superiors for some degree of disclosure. Among them were Jeh C. Johnson, the Defense Department general counsel, and Harold Hongju Koh, the State Department legal adviser. The national-security “principals” quickly divided into camps. The CIA and other elements of the intelligence community were opposed to any disclosures that could lift the veil of secrecy from a covert program. Others, notably the Justice and State departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation.


The issue came to a head at a Situation Room meeting in November. At lower-level interagency meetings, Obama officials had already begun moving toward a compromise. [snip]

Another senior official expressing caution about the plan was Kathryn Ruemmler, the White House counsel. She cautioned that the disclosures could weaken the government’s stance in pending litigation. 


It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the “half Monty” versus the “full Monty,” after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as “the full Harold.”

It continued through a series of high level speeches early this year. The centerpiece of that series featured the Attorney General celebrating our values, the Constitution, and rule of law, then noting the importance of judicial oversight (though in the case of surveillance, not killing), but finally rejecting all those things when it comes to killing American citizens.

But just as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals.   Not only is this the right thing to do – history has shown that it is also the most effective approach we can take in combating those who seek to do us harm.


We must – and will continue to – use the intelligence-gathering capabilities that Congress has provided to collect information that can save and protect American lives.   At the same time, these tools must be subject to appropriate checks and balances – including oversight by Congress and the courts, as well as within the Executive Branch – to protect the privacy and civil rights of innocent individuals.


Any decision to use lethal force against a United States citizen – even one intent on murdering Americans and who has become an operational leader of al-Qaeda in a foreign land – is among the gravest that government leaders can face.   The American people can be – and deserve to be – assured that actions taken in their defense are consistent with their values and their laws.   So, although I cannot discuss or confirm any particular program or operation, I believe it is important to explain these legal principles publicly.


Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.   This is simply not accurate.   “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.   The Constitution guarantees due process, not judicial process. [my emphasis]

These themes appeared again in an Obama interview with CNN in September. The President insisted that the best way to reduce the terrorist threat is to live up to our values.

Our most powerful tool over the long term to reduce the terrorist threat is to live up to our values and to be able to shape public opinion not just here but around the world that senseless violence is not a way to resolve political differences. And so it’s very important for the President and for the entire culture of our national security team to continually ask tough questions about, are we doing the right thing? Are we abiding by rule of law? Are we abiding by due process? And then set up structures and institutional checks so that you avoid any kind of slippery slope into a place where we’re not being true to who we are. [my emphasis]

As I noted at that time, Obama’s Administration has rejected the best tool for ensuring we live by our laws and values: court review.

Having started by saying that drones are just a tool, he ends up by saying that we will vanquish terrorism by upholding our values–rule of law and due process.

And then the Constitution Professor President describes “set[ting] up structures and institutional checks” to make sure that we deliver rule of law and due process.

This, from the guy whose Administration refused to litigate a suit from Anwar al-Awlaki’s father to make sure it was upholding the standards Obama claimed in this interview in Awlaki’s case.

This, from the guy whose Administration has claimed state secrets to make sure no court can review the claims of people who have been rendered or tortured or illegally wiretapped.

This, from the guy who wouldn’t do the politically difficult things to have Khalid Sheikh Mohammed tried–and surely, convicted–before a civilian court in NYC.

He’s looking for structures and institutional checks to make sure we don’t go down that slippery slope where we forget rule of law. And yet his Administration has repeatedly avoided the one mandated by the Constitution: courts.

In October we learned that the Administration had charged the Moral Rectitude Assassination Czar to set up structures to make sure the program didn’t go haywire if Obama’s assassination czars were replaced by Mitt’s.

That effort continues, Scott Shane reports today, though with slightly less urgency now that we know John Brennan (or his replacement) will be targeting the drones rather than Cofer Black.

Election Spurred a Move to Codify U.S. Drone Policy

Facing the possibility that President Obama might not win a second term, his administration accelerated work in the weeks before the election to develop explicit rules for the targeted killing of terrorists by unmanned drones, so that a new president would inherit clear standards and procedures, according to two administration officials.

But what Shane’s story really covers–once you get beyond the spin the White House seems to have wanted–is the Administration’s continued to refusal to provide enough transparency to make these rules meaningful in any way.

Despite public remarks by Mr. Obama and his aides on the legal basis for targeted killing, the program remains officially classified. In court, fighting lawsuits filed by the American Civil Liberties Union and The New York Times seeking secret legal opinions on targeted killings, the government has refused even to acknowledge the existence of the drone program in Pakistan.

Here’s the punch line of Shane’s article: this “rule book” meant to ensure we uphold our values while raining down death around the world is secret.

The draft rule book for drone strikes that has been passed among agencies over the last several months is so highly classified, officials said, that it is hand-carried from office to office rather than sent by e-mail.

The Administration seems to recognize their drone program, conducted in secret yet not even meeting the standards it claims to meet, is illegitimate in current form.

It even recognizes the core problem: we claim to be a law abiding country, and law requires review.

Yet over and over the solutions it crafts to fix the illegitimacy refuse to adress that core problem: review, via transparency and court oversight.

A year ago, some Obama advisors argued correctly the way out of this was through disclosure. But for the last year, Obama’s Administration has tried to jerry-rig an alternative.

All while repeatedly admitting that nothing short of that disclosure and review will do the trick.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

30 replies
  1. bmaz says:

    It is amazing how the Administration has shifted the discussion to the field of “disclosure” and away from “review”. They go hand in hand in a due process led rule of law. But we are now treated to the specter of the Obama Administration’s “behind the scenes” battle over disclosure. That is what I found so troubling about Wittes, Goldsmith et. al’s acclaim for the “speeches” given by Koh, Johnson and Holder, among other dribbling tidbits. It is substituting severely choked and incomplete disclosure for the actual due process of judicial review.

    So long as the actual decision making remains factually opaque, secretive and arbitrary, there is no due process. The Obama Administration’s little internal star chamber can never yield the due process guaranteed by the Constitution no matter how many segregated procedural elements are dribbled out by its members.

  2. Bill Michtom says:

    The Times: “’There was concern that the levers might no longer be in our hands,’ said one official, speaking on condition of anonymity,” says Scott Shane without any explanation.

    Thanks for helping the government break the law, Scott.

  3. Casual Observer says:

    Seems to me that building a judge-less due process is like building a stone wall without stones. Which is not to say that they can’t or won’t do exactly that. At the end of the process, they’ll stand back, looking at a wall that doesn’t exist, and assure us that it is right there and works just great.

    I wonder if they have considered a secret court process, set up like FISA. They could rig it so that judges would never say “No”, but also be able to say with a straight face that there was indeed due process. We could call them death courts, assassination courts. Surely, if we can find people willing to explode others in signature strikes using tv screens and joysticks, we should be able to find judges willing to rubber-stamp it.

  4. Brindle says:

    @Casual Observer: Obama’s vision of due process appears to a self-enclosed loop that exists in its own universe. The only required inputs, start button and result button are programmed by executive branch.

  5. Arbusto says:

    I find a troubling aspect in today’s citizenry, mainly the outcome justifies the deeds. This war (on whatever) seems to invigorate not only anti Muslim bigotry but pro Obama, at any cost, liberals. So while Bubba down the street may hate anything and everything about Obama, he loves him some killing of arabs, even if the Jews have to do it, and the educated elite pro Obama acknowledge collateral damage as the necessities of war. That in conjunction that the legal beagles at Justice(?) and the Administration know that they are above the rule of law and will suffer no consequence.

  6. What Constitution says:

    Where’s Dawn Johnsen when we need her? First Term Obama abandoned her; what of Second Term Obama? Oh, wait, she probably still believes in due process of law.

  7. Peterr says:

    @Peterr: There’s also Obama’s fine keynote address at the 2009 Holocaust Remembrance Commemoration, which amazingly took place just one week after the OLC torture memos were made public and Obama quickly said that “just following orders” was a fine reason for holding torturers accountable in court for their actions.

    If he could pull that little bit of cognitive dissonance off, hiding the drone program from judicial review is nothing.

    (I hadn’t looked at those two old posts in quite a while, and they piss me off more now than when I first wrote them.)

  8. x174 says:

    the drone program is a lot bigger than the white house and their childish machinations.

    the Age of the Drone (as part of the Age of Surveillence) is here and there’s no stopping it.

    the Drone Age purports to solve all of the age-old problems of war: allied casualties, accountability, exorbitant expenses.

    And it has launched an entirely new, vibrant global industry!

    what’s not to like ‘cept the wake of dismembered bodyparts, decimated lives, destroyed sense of peace, growing hatred of all things americans, et cetera.

  9. Michael Murry says:

    Transparency through Opacity.
    Legality through Crime.
    Effectiveness through Failure.

    The New Orwellian slogans of the Property Party with its two right wings.

  10. marksb says:

    @Arbusto: I agree with all of you regarding life and liberty and the freedom from being killed without due process…but I’m probably the educated elite pro-Obama guy (though frankly I don’t know how elite I am) you refer to and I look at the horror that the Repubs put up for office, the fact that a vote for a third party (assuming someone qualified is actually on the ballot) is effectively a vote for that Repub horror, and that somewhere between 50 and 70% of what Obama does is agreeable to me…and what the heck?
    It’s a conundrum and I hate it.

  11. Arbusto says:

    @13marksb: I shouldn’t have used “elite” to describe the wide spread and IMO unfounded love/respect of Obama by many on the left. We suffer Sophie’s Choice each election due to the duopoly party system and oligarchy. We were sold a bill of goods in the ’08 primary, thinking Obama must really be a liberal Democrat instead of the blood dog we got. We can only observe the next four years and note how far Obama continues the Republic towards a police state, since I at least feel completely powerless to counter the movement.

  12. Tom in AZ says:

    Here is AZ, I tell the tea bag looneys that I am a liberal, Obama is what used to be a Republican before all you people lost their minds. And tell them I am the disappointed one, they should be dancing in the streets. He has kept the worst of Bush all these years.

  13. What Constitution says:

    You know, Holder’s quoted speech wasn’t really worth much. After all, here’s the Attorney General of the United States prefacing a speech about constitutional principles with the caveat that “But just as surely as we are a nation at war, we also are a nation of laws and values.” Since, as the Attorney General of the United States is presumptively aware that the Constitution provides that only Congress shall have the power to declare War — and since he also presumptively knows that Congress hasn’t done that — then, well, the rest of the speech is equally hypothetical. Right? So, the ideas Holder speaks of regarding “laws and values” are those which he and his boss choose to decide ought to be applicable in these “extraordinary times” — which is how Holder, and Obama, and Bush, and Scalia are just fine with redefining everything to suit their personal view of momentary expedience.

    But it was the Supreme Court, in Boumediene v Bush, that squarely reminded everyone that “The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.” Those same Framers wrote the Fourth, Fifth, Sixth and Eighth Amendments, too, as well as the Congressional power to declare War. So maybe there is, oh, no friggin’ reason to give any credence whatsoever to the facially absurd premise of the Obama Administration’s current spin on the codification of the Kill List procedures – “we might have lost the election so maybe we should write something down” – when the place to focus the discussion is “how can this possibly be considered legal in light of the actual law and Constitution of the United States”?

  14. rosalind says:

    kinda sorta related: so the first reviews are in for “Zero Dark Thirty”, the film on the hunt for Osama Bin Laden that the Obama Administration gave director Kathryn Bigelow and writer Mark Boal inside info on while We The People must shell out money to get access to same. here’s a description of the beginning:

    “Cut to two years later, when a captured nephew of Osama Bin Laden undergoes a prolonged series of brutal CIA interrogations that involve beatings, waterboarding, being bound by a dog collar and ropes and getting locked in a small wooden box.”

    why, it’s the veritable greatest hits of torture inc! no info whether it’s depicted as having “worked”.

    really hope as they make their promotional appearances some reporter asks Bigelow & Boal how they justify commercial for-profit filmmakers receiving information that We The People have not been allowed access to.


  15. DonS says:

    @What Constitution: Thank you for your thoughtful comment. The wish to find an entree to grabbing our dying institutions — at least the politically connected ones — by the throat is compelling. I don’t wish to be depressing, but I think we are fighting a losing battle.

  16. TarheelDem says:

    What are the Congressional politics that would be kicked off by raising this issue transparently? It is very strange that a Congress looking for an excuse, any excuse, to impeach another president has not seized on this lack of transparency.

    Has the Congress become that captive to the wishes of the intelligence community?

  17. orionATL says:


    it is a religious holiday in pakistan,

    and, not surprisingly, all hell is breaking loose.

    what gives?

  18. Troubled in Midwest says:

    Tonight I have been discussing civil rights and civil liberties – and the legal frameworks defining them – with my high school age child who is preparing for an American government test. There is no mention of these recent events in the textbook. No discussion of the slippery slope down which it seems we as a country have already plunged headlong. Why is no one alerting young people to what is being lost. I find it distressing.

  19. Eric Hodgdon says:

    Well folks, what now? More chit chat before Tennis?

    I’m not aiming at anyone in particular, but I’ve been pushing organizing for a year. No takers yet. Must be my style.

    The United States of Fear.

    My push is non-violent struggle, not passivity or violence.

    I know the critical mass is not there, but this idea must be seriously considered. With politics dead, what other choice is there?

    Nothing illegal in considering options.

  20. bmaz says:

    @Troubled in Midwest: That is a good question. My daughter is in her senior year in high school and I note the same things. I think several things are in play. First, history and government, as taught in high school, are more the traditional underpinnings from a historical perspective, not the latest developments. One, this allows for a consistent curriculum and, two, it allows them to keep current politics out as much as possible to not run astray of school boards and other interests.

    But, also, you have to keep in mind that some of the stuff we discuss and analyze here, and other places you likely read if you are reading here, is pretty high tech material. It is hard enough to grasp in its own right – and put in perspective – it would be much more to do so and teach it to high school students that don’t have a longer term and deeper bead on the process. All for what it is worth, just my take.

  21. Troubled in Midwest says:

    Point taken. And yet. Impunity for government that reserves the right to take the lives of its own citizens without an open legal process seems to me a hallmark of authoritarianism. Our children need to know it. Catching me on a bad day. I went to my local history archive to investigate late-1930s far right groups only to discover: that box doesn’t seem to be there anymore. Many parallels historically to that period, I would say.

  22. Eric Hodgdon says:


    Here’s a few passages from above:

    the Age of the Drone (as part of the Age of Surveillence) is here and there’s no stopping it.

    We can only observe the next four years and note how far Obama continues the Republic towards a police state, since I at least feel completely powerless to counter the movement.

    I don’t wish to be depressing, but I think we are fighting a losing battle.

    …seems to me a hallmark of authoritarianism. Our children need to know it.

    …is pretty high tech material. It is hard enough to grasp in its own right – and put in perspective…

    This last one troubles me. It’s yours and it troubles me. It troubles me, because I’ve studied the Constitution, the Convention of 1787 notes, not all, but enough for now. And, from the investigation into these documents, it’s clear the federal government is and has been un-Constitutional for generations. However, as the selection of passages above indicate, fear, hopelessness, resignation, etc. keep all from doing anything except briefly discuss the foundation upon which all rests – the Constitution.

    Discussion of any other issue is ignoring the foundation from which all is derived from. I may have a greater historical perspective than others, because it’s in my heritage of being on this continent for almost 400 years, the lives and deaths and all the rest that went into making this country – rights and wrongs – being sold out to empire and eventual destruction.

    And, the people commenting here say and think better than the others, but they also sound basically the same – everyone seems to give up without a fight.

  23. Stu Wilde says:

    @What Constitution: yeah, but no one has standing to challenge it in court — because they are dead and their relatives are shut out of court — oh, and the govt just LOVES to use the state secrets privilege even tho all there is plenty of this drone stuff already out there for public consumption

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