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More on Releasing the Legal Rationale for the Al-Aulaqi Strike

Benjamin Wittes
Tuesday, October 4, 2011, 3:07 PM
In the past couple of days, both Jack and I have called for greater transparency concerning the legal rationale for the drones program.

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In the past couple of days, both Jack and I have called for greater transparency concerning the legal rationale for the drones program. Lurking behind both of our posts--and peeking out of both occasionally--is a point that is worth making explicit: There is something deeply wrong about the faux covertness of this program. The government goes into court and urges a distinguished federal judge that the legality of the program cannot be discussed or litigated without gravely compromising national security. It refuses to publicly acknowledge the program. And then officials discuss freely with the press not only its legal basis, but the intelligence behind particular strikes, and Yemeni assistance in the Al-Aulaqi strike--all anonymously. The result is a system that is covert only for purposes of accountability, not for purposes of credit-claiming. It is an abuse of the secrecy system, and it is an abuse that grows worse the more that drone strikes become the centerpiece of American counter-terrorism policy. The other day, during John Brennan's speech at the Harvard Law School-Brookings conference, the estimable Benjamin Wizner of the ACLU posed a cheeky question, giving rise to the following exchange:
Wizner: Does the CIA have a drone program?  (laughter) Brennan: Well, as you know, covert actions are designed to be covert, and therefore. . . Wizner: And therefore you only read about them in the newspaper. Brennan: If the Agency did have such a program, I'm sure it would be done with the utmost care, precision, [inaudible because of laughter] in accordance with the law and our values. If such a program existed.
In the long run, and the long-run may not be very long, U.S. counterterrorism policy will not be sustainable if it is a matter of coyness--much less if it is a matter of audience mirth. Wizner, of course, was being provocative, but that's his job, and his question was hardly unfair. Indeed, everyone in the world knows the answer to it, and it is interesting only because someone like Brennan can't answer it. Brennan's non-answer was charming, but the government can't wink forever.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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