Like the George W. Bush Administration before it that sought to use secret legal memoranda to legitimize heinous treatment of prisoners, the Obama Administration appears to be using questionable and secret legal memoranda in an attempt to justify expanded presidential powers, including the power to use drones for “targeted killings.”
Judge Andrew Napolitano, talking this week with host Megyn Kelly on Fox News, explains how the Obama administration is employing this tactic:
Kelly: What are they going to do with the memos from the DOJ giving the President his legal authorization for these end-arounds?
Napolitano: They will never get those memos because the DOJ is afraid to demonstrate to the public, to people like you and I who are lawyers and analyze these things for a living, Megan, that they are without the type of authority that the president claims he has. This DOJ has gone to federal judges and refused to reveal memoranda of legal authorities based on public law as to the president’s decision with respect to drones, for example. How could you claim that your legal reasoning is secret? I can understand keeping certain facts secret, but you can’t keep legal reasoning secret. That’s what these guys are doing….
Watch here Napolitano, an RPI Advisory Board member, explain the legal shenanigans:
President Barack Obama’s assertion that he relies on secret legal memoranda to justify using drones to kill people — including US citizens — prevents both public scrutiny and genuine congressional oversight.
On November 28, 2012, RPI Advisory Board Member Dennis Kucinich, then a member of the US House of Representatives, introduced H.Res. 819 to require delivery to Congress of the secret documents and legal memoranda justifying the targeted killings. This would allow Congress to exercise its oversight role. Here is the brief resolution:
Resolved, That the Attorney General is directed to transmit to the House of Representatives, not later than 14 days after the date of the adoption of this resolution, any documents and legal memoranda in the Attorney General’s possession relating to the practice of targeted killing of United States citizens and targets abroad.
Twenty days later, the House Judiciary Committee killed the resolution, voting it down without a recorded vote.
In February, Obama did order the Department of Justice to allow the US Senate and House of Representatives Intelligence Committees access to some secret drones information. Yet, even that very limited action came only after media had obtained a leaked summary of the memorandum and Senators had threatened to delay confirmation of Obama’s military and Central Intelligence Agency nominees.
Today the Obama administration continues to hide from the American people the justifications for drone strikes and other “targeted killings.” H.H. Bhojani notes in Mother Jones this week the extent to which the Obama administration is even stonewalling congressional oversight:
The administration has repeatedly denied requests for further information from lawmakers. For instance, since 2011, 21 requests by members of Congress to access Office of Legal Counsel memoranda that provide the legal basis for targeted killings have been denied. The White House also refused to provide witnesses representing the administration at recent Senate and House Judiciary Committee hearings on targeted killings.
While Obama keeps a wall of secrecy around the drones program, he nevertheless asserts in his January 28 State of the Union speech that:
So, even as we aggressively pursue terrorist networks – through more targeted efforts and by building the capacity of our foreign partners – America must move off a permanent war footing. That’s why I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.
Should we just accept that Obama’s and his lawyers’ perceptions of “prudent limits” square with ours?
Can we just trust a president who said “We don’t have a domestic spying program” last year?
Obama’s State of the Union speech promise of restraint in the use of drones offers little assurance given that the promise is backed only by an appeal that we trust him and his secret legal memoranda.
