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I disagree with the Washington Post's opinion that it is legal and just to assassinate American citizens suspected of terrorism, but we can at least agree that if the President is going to make such an undeniably controversial decision, the President's justification should be a matter of public discourse.

WaPo's editorial board opined that the Obama administration should release the secret Justice Department memo used as legal justification for the targeted assassination of American citizen Anwar al-Awlaki. WaPo rightly draws comparison to the secret - and horribly-flawed - memos the Bush administration used to "justify" torture.

My organization, the Government Accountability Project, filed a FOIA request for the memo.

The secrecy of the Awlaki memo is yet another example of the rampant overclassification plaguing our intelligence community and undermining both national security and democracy.

Scott Shane of the New York Times wrote about the prepostorous secrecy surrounding the CIA's use of drones against Awlaki and the memo justifying Alwaki's killing:

Speaking hours after the world learned that a C.I.A. drone strike had killed Anwar al-Awlaki in Yemen, President Obama could still not say the words “drone” or “C.I.A.”

That’s classified.

. . . officials have been willing to give only a brief summary of the government’s reasoning, refusing to make public the classified written opinion of the Justice Department’s Office of Legal Counsel, the authoritative arbiter of the law.

Steven Aftergood of the Federation of American Scientists, who has tracked government classification policies for two decades, said such secrecy about a disputed policy is “a kind of self-inflicted autism that cuts decision makers off from the input they need, both from inside the government and outside.” After last week’s strike, he added, “any justification for withholding the O.L.C. memo went away.”

The Drone program is classified, but it is not secret.  The legal justification is classified, but legal experts can guess at its reasoning.  Secrecy prevents the administration from having to openly defend its actions.  High-level government officials can control what information the public sees and can refuse to answer hard questions by asserting classification.  

The record-number of so-called "leak" prosecutions under the Espionage Act demonstrates what happens to employees who release supposedly-secret information the high-level officials want to keep hidden.  Speaking yesterday at an event releasing the Brennan Center for Justice's new report on overclassification, former classification czar under the George W. Bush, J. William Leonard, spoke about the case of National Security Agency whistleblower Thomas Drake.  Leonard said in all his years of seeing overclassification, the Drake case was
"the most deliberate example" of overclassification. Leonard filed a formal complaint requesting discipline for the Justice Department and NSA officials who overclassified documents Drake was accused of illegally retaining, documents which Leonard says "never should have been classified in the first place."

The Brennan Center's report proposes pragmatic solutions to the overclassification problem, such as incentives for government officials who challenge secrecy rulings and requiring officials to explain their reasoning for classifying information.  Even the Obama administration agrees overclassification is a problem the Times reports:

In December 2009, Mr. Obama ordered agencies to update their rules to avoid overclassification . . .

Yet, for one of the most controversial - and legally-questionable - actions of his presidency, the Obama administration has opted for secrecy, insisting that both the drone program and the legal reasoning behind the Alwaki assassination remain officially secret.

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