The Obama administration has set the transparency bar for revealing secret law dreadfully low. WaPo reports:
The Justice Department will publicly release a secret 2011 memo that provided the legal justification for the killing of American terrorism suspects overseas, according to a U.S. official, following extensive pressure on the administration to do so.
The department had been weighing whether to appeal a court order to disclose the memo but informed the White House on Tuesday that it would not, the official said. The decision came on the eve of a Senate vote on President Obamaâs nomination of David J. Barron, one of the memoâs authors, to a federal appeals court judgeship.
This is what transparency has come to. The Executive branch will
comply with a court order to release the memo. And in exchange, the memo's author will get a lifetime federal judgeship.
I wrote last week about Barron's nomination. While it will certainly benefit the public to know the legal justification the Executive branch uses before it unilaterally decides it can kill U.S. citizens without due process, the Obama administration's "transparency" move is hardly voluntary. A court ORDERED the memo's release.
We are so desperate for a nugget of transparency that it is worth celebrating when the administration stops fighting in court to keep secret the legal justification for killing U.S. citizens without charge, trial, access to an attorney or the ability to confront their accusers in court.
The Associated Press reported that the Justice Department will release the memo, but:
ACLU Deputy Legal Director Jameel Jaffer said they had not been notified of any decision by the Justice Department. We'd welcome the public release of this document, he said of the memo. The government claims authority to carry out targeted killings of Americans deemed to threaten national security the public surely has a right to know the breadth of the authority the government is claiming as well as the legal basis for it.
Meanwhile, as the Obama administration threw the public a crumb of court-ordered transparency in exchange for greasing the wheels for Barron's confirmation, it lobbied aggressively against the most meaningful reform in the already far from perfect USA Freedom Act. The bill passed unanimously out of the House Judiciary and Intelligence Committees with a provision to end bulk collection of Americans' records, a program the public only knows about thanks to whistleblowers like Edward Snowden. (NSA claimed the bulk collection was permissible under a secret interpretation of Section 215 of the PATRIOT Act.) After
negotiations led by NSA General Counsel Robert Litt, who has spent the past year publicly defending all things NSA, the House Rules Committee neutered the bill. Privacy groups have pulled their support
en masse. Here's what the
Electronic Frontier Foundation had to say:
Unfortunately, the bill's changed definitions, the lack of substantial reform to Section 702 of the Foreign Intelligence Surveillance Amendments Act, and the inability to introduce a special advocate in the FISA Court severely weakens the bill. . . .
In particular, we are concerned with the new definition of "specific selection term," which describes and limits who or what the NSA is allowed to surveil. The new definition is incredibly more expansive than previous definitions. . . . Congress has been clear that it wishes to end bulk collection, but given the government's history of twisted legal interpretations, this language can't be relied on to protect our freedoms.
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It has been almost a year since whistleblower Edward Snowden risked his life to help the public learn about NSA's mass surveillance activities. The American public should demand meaningful reform, not the watered-down reform-shaped facade the House Rules Committee spat out yesterday.
