Since early September, U.S. forces have carried out eight strikes on boats in the Caribbean and Pacific, killing at least 34 people. President Trump says the strikes are legal, and that the boats were trafficking drugs, but he has not offered evidence to substantiate the claim. Nor has he explained how the deliberate, premeditated killing of civilians — what Colombian and Venezuelan leaders and some jurists have called “murder”— can possibly be reconciled with domestic and international law. The Justice Department’s Office of Legal Counsel has reportedly deemed the strikes lawful, but its analysis hasn’t been disclosed.
A quarter-century after the Sept. 11 attacks, then, we find ourselves in a familiar place: Our government is once again committing grave human rights abuses on the ostensible authority of a legal opinion that is being kept secret.
The Office of Legal Counsel is a division of the Justice Department that interprets the law for the executive branch. It has played this role for decades, issuing opinions that bind federal agencies on matters ranging from Social Security to veterans’ affairs to immigrants’ rights.
After Sept. 11, the office was called on by both the Bush and Obama administrations to resolve questions relating to national security. It told President George W. Bush that the National Security Agency could listen to Americans’ phone calls without warrants and that the Taliban were not entitled to the protections usually accorded prisoners of war. It assured the C.I.A. that it could lawfully torture prisoners overseas. Later, it concluded that the Constitution’s due process clause was no obstacle to the government’s summary execution of an American terrorism suspect.
The Office of Legal Counsel’s war-on-terror opinions might have provoked debate, and even popular fury, if they had been disclosed soon after they were written, but the Justice Department relied on national security justifications to keep them from the public for years. As a result, significant errors in the office’s legal analyses went unidentified and uncorrected, even as agencies relied on them to carry out policies that were deeply inconsistent with American law and democratic values. Public debate on matters of profound consequence unfolded in an information environment distorted by official secrecy, misdirection and selective disclosure.
The office’s opinions about interrogation allowed some of the most egregious post-Sept. 11 abuses and were later discovered to include some of the most glaring legal errors. With the office’s blessing, prisoners in secret C.I.A. sites were beaten, forced into painful stress positions, deprived of sleep and waterboarded — a method intended, the office explained, to induce in the prisoner “the uncontrollable psychological sensation that the subject is drowning.” Military policemen and interrogators subsequently came to adopt cruel methods at Guantánamo, as well as in Afghanistan and Iraq. Some prisoners were tortured to death.
One of the torture memos was leaked to the press in 2004, but it was only after other opinions by the office were made public in 2009 — after years of litigation by human rights groups — that the profound defects in their reasoning came fully into focus. An investigation by the Justice Department’s Office of Professional Responsibility determined that the memos’ two principal authors had committed professional misconduct. (A controversial Justice Department review softened the conclusion.) The Senate Intelligence Committee later concluded in a monumental report that the torture program had compromised the United States’ standing in the world as well as its security.
Office of Legal Counsel memos related to drone strikes were also withheld from the public, with the Obama administration warning courts that their disclosure could cause grave harm. The memo authorizing the killing of Anwar al-Awlaki, an American accused of plotting against the United States, was withheld for four years, even as government officials freely leaked cherry-picked information about U.S. drone strikes to the press.
During that period, the C.I.A. used armed drones to kill Mr. al-Awlaki, another American who was traveling with him, and, in a separate strike, Mr. al-Awlaki’s 16-year-old son, also an American. (Officials said the boy was not the intended target of the strike.) The administration also persuaded federal judges that it should not be required to present evidence to justify the killings — not before the killings, and not after.
The al-Awlaki memo was published in 2014, only after the A.C.L.U. and The New York Times filed suits seeking its release, and only because the Obama administration had undermined its own national security arguments by engaging in what one judge characterized as “an extensive public relations campaign” to convince the public that Mr. al-Awlaki’s killing was lawful. (As a lawyer for the A.C.L.U., I was counsel in that case and the one involving the torture memos, as well as in the cases involving the lawfulness of the drone strikes that killed Americans.) But by the time the al-Awlaki memo was published, it was of mostly historical interest. The practice of targeted killing had been normalized. The debate about the legitimacy of the government assassinating one of its own citizens was largely over.
American courts tend to be deferential to the executive branch in cases involving national security.Both the Bush and Obama administrations repeatedly abused that deference in an effort to control what the public learned and believed about their policies, to the detriment of our democracy. To be sure, there were good reasons to keep some of the factual information in the war-on-terror opinions secret, at least for a time. But the arguments for withholding the legal analysis were far weaker, and we can see now that they were decisively outweighed by the public’s interest in understanding official decisions that had sweeping implications for human rights, national security and the United States’ moral authority.
The memo authorizing strikes on drug traffickers in the Caribbean and Pacific may very well be an outlandish extension of the memos the office wrote about drone strikes during the Obama administration, including the al-Awlaki memo. That memo was itself flawed. Human rights lawyers faulted it for taking an unjustifiably expansive view of Congress’s 2001 authorization for use of military force, and in a 2016 book I criticized its myopic analysis of the due process clause.
But Mr. Trump’s strikes are being conducted without any congressional authorization at all, and few jurists accept the notion that the United States is in an armed conflict with drug cartels. Whatever their defects, the Obama-a memos do not supply authority for the strikes the United States is carrying out now.
We should not have to guess how the Justice Department concluded that these strikes on civilians were lawful. The public should be able to read the government’s legal justifications for itself — and not at some indefinite point in the future, by which time the Office of Legal Counsel’s opinion’s relevance will have faded, but now, when there’s still something that might be done to change the government’s policies and hold accountable the officials who are responsible for them.
It was a mistake for the courts to allow the Bush and Obama administrations to control what the public learned about their most consequential decisions and policies in the years after Sept. 11. When the secrecy of the Trump administration’s OLC memo comes before the courts, as it almost certainly will, it will be tragic if judges extend the same deference to an administration that has made plain its contempt for the rule of law.
The courts should not debase our democracy by pretending that there are good national security justifications for keeping us in the dark.
Jameel Jaffer is executive director of the Knight First Amendment Institute at Columbia and former director of the A.C.L.U.’s Center for Democracy.
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