This piece was originally published on on October 7, 2013.
For several years, the ACLU has been pressing the Obama administration to be more transparent about the targeted-killing program. I'm starting to wonder whether it understands what we mean.
Last week, I argued a case before the Second Circuit involving the secrecy surrounding the program. The case involves a Freedom of Information Act request filed by the ACLU two years ago for records about the government's killing of three Americans in Yemen. The CIA initially claimed it couldn't disclose whether it had records responsive to the request without compromising national security. Later the CIA acknowledged that it had responsive records but argued that national-security concerns precluded it from enumerating or describing them. Earlier this year, the district court observed that the CIA's so-called "no-number no-list" response was the stuff of Alice in Wonderland — but then ruled for the CIA anyway.
In our appeal brief, we point to the many instances in which senior government officials have discussed the targeted killing program publicly. In media interviews and speeches, we write, officials have defended the program's legality, effectiveness, and necessity. They've dismissed concerns about civilian casualties. And through not-for-attribution interviews with reporters, they've engaged in what one appeals-court judge called "a pattern of strategic and selective leaks at the highest level of government." We argue that the administration shouldn't be permitted to pretend that everything about the program is a secret while its most senior officials conduct a public-relations campaign about it.
At oral argument last week, though, the government's attorney turned our argument on its head. The disclosures cited by the ACLU, she said, were evidence that the government had made a genuine effort to be transparent about the targeted-killing program. By pointing to those disclosures, she said, the ACLU was trying to penalize the government for having been as transparent as it had been. (I'm paraphrasing because I don't yet have the transcript.) The government's attorney also warned the court against requiring the government to disclose more. If the court held that the government couldn't disclose some information about a subject without waiving its right to withhold other information, she argued, the government would hesitate before releasing anything at all.
The government fundamentally misunderstands our complaint — or it understands only half of it. Our complaint isn't just that government officials are keeping too much information secret, though they are. It's also that the government is releasing information selectively—that it's cherry-picking its disclosures in a way that misleads the public about the targeted-killing program's scope and nature and implications. Government officials release information about the killing of suspected terrorists but withhold information about bystander casualties. They tell the public that lethal force is used only when capture is infeasible, but they decline to say how feasibility is assessed. They release a Cliffs Notes version of their legal theory, but not the legal memos — let alone the factual ones — on the basis of which the killings actually take place. They release facts meant to reassure, but they withhold facts that might unsettle.
Of course there's nothing new about this kind of thing. Governments prefer to release information that presents their actions in a flattering light and suppress information that doesn't. But this is why we have the FOIA. The Obama administration suggests that the FOIA is concerned only with excessive secrecy, but while the Congress that enacted the statute in 1966 was concerned with "transparency" in the narrow sense of that word, it was at least as troubled by selective disclosure. Here is the House Republican Policy Committee's statement in support of the Act:
In this period of selective disclosures, managed news, half-truths, and admitted distortions, the need for this legislation is abundantly clear. High officials have warned that our Government is in grave danger of losing the public's confidence both at home and abroad. The credibility gap that has affected the Administration's pronouncements on domestic affairs and Vietnam has spread to other parts of the world. The on-again, off-again, obviously less-than-truthful manner in which the reduction of American forces in Europe has been handled has made this country the subject of ridicule and jokes. "Would you believe?" has now become more than a clever saying. It is a legitimate inquiry.
Americans have always taken great pride in their individual and national credibility. We have recognized that men and nations can be no better than their word. This legislation will help to blaze a trail of truthfulness and accurate disclosure in what has become a jungle of falsification, unjustified secrecy, and misstatement by statistic.
Representative Donald Rumsfeld of Illinois, a champion of the proposed law, set expectations slightly lower but explained the law's aims similarly:
Certainly it has been the nature of Government to play down mistakes and to promote successes. This has been the case in past administrations. Very likely this will be true in the future. . . . [This bill] will not change this phenomenon. Rather, the bill will make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that the people should be denied access to information on the conduct of Government or how an individual Government official is handling his job.
(Citations and a fuller discussion of the legislative history can be found at pages 17-19 of this brief.)
The point is obvious: disclosure and transparency can be two very different things. If the government discloses that it doesn't engage in "torture" but suppresses the memos that redefine the term, the disclosure hasn't served transparency but undermined it. The same is true if the government discloses (or celebrates) the killing of "militants" but refuses to release information about the killing of innocent bystanders. Perhaps these disclosures shouldn't be thought of as disclosures at all. If they're disclosures, they're disclosures that misinform or mislead rather than enlighten.
In the Second Circuit, the government cited its record of past disclosures to argue that the court shouldn't require it to release more information. It was that record of past disclosures, though, that led us to file the lawsuit in the first place. As we argue in our brief, that record isn't a reason to relax FOIA's requirements — it's a reason to enforce them.
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National Security
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