When Lanny J. Davis worked as the Clinton White House's top crisis manager from 1996-1998, he had a strategy for dealing with potentially damaging news stories (and he dealt with many): "Tell it early, tell it all, tell it yourself." The Obama administration would do well to consider my old boss' philosophy as it contemplates how much information to disclose about the nation's quasi-secretive drone program.
A recently leaked white paper outlining the general thrust of a highly classified Office of Legal Counsel memo that explains when the United States may use drones to target American citizens operating as terrorists abroad makes abundantly clear that the administration's continued refusal to fully disclose the memo to the public has only served to perpetuate the myth that the United States government's targeted killing program transgresses the laws of this country and the international community. Neither is true, and it is time for the administration to put to rest the myths that its silence has perpetuated.
The Obama administration has been understandably reluctant to talk about the drone program. It has expressly refused to release the OLC memo detailing the legal framework governing decisions to use lethal force to target terrorist leaders, including American citizens. Targeted killing — a practice that has long outraged the human rights community — came under increased scrutiny in the broader media when U.S. drones hit Anwar al-Awlaki with a hellfire missile. Al-Awlaki was a Yemeni-American who served as a senior leader in al Qaeda in the Arabian Peninsula (AQAP). He recruited and directed individuals to participate in specific acts of violence against Americans. Despite the loud protests of people like Glenn Greenwald, Professor Robert Chesney has convincingly argued that if al-Awlaki was the person the government says he was, the U.S. decision to employ lethal force against him was justified under both the law of war and the international human rights law.
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Still, in the wake of the al-Awlaki killing, pressure grew for the Obama administration to release the OLC memo that governs targeted killing decisions. As Ben Wittes and Susan Hennessey explain at Lawfare, this left the administration four options: "(1) say nothing, (2) give a speech, (3) release a white paper, and (4) release a redacted version of the memo itself." Actually, though, there was a fifth option the White House considered: Give a speech publicly and distribute a white paper privately around the Hill.
That's what happened. Last March, Attorney General Holder gave a speech at Northwestern Law School in which he laid out a very general case for targeted killing. The speech really did nothing to help the situation — Holder offered too little detail to lay to rest transparency concerns, but offered enough detail for the more extreme members of the human rights community to take to the media and decry the end of the rule of law in America. The furor died down, but gave way to a sort of death-by-paper-cut process in which tidbits of information have continued to leak out about the memo.
The latest leak is a big one: the white paper that officials prepared and distributed around the Hill. As Lawfare correctly observes, the white paper actually offers very few new details about the targeted killing program, yet it is being covered as a "new" disclosure that is plagued by the exact same problems that plagued Holder's speech: too little information to satisfy transparency concerns, but enough information to allow human rights activists to go bonkers. And now the White House has been pressured into releasing the full memo to two congressional committees.
The White House never should have considered the speech plus the white paper as a viable option. Doing so surrendered the benefits the administration would have accrued from keeping the plan secret while also ensuring that it would not get any credit for transparency. Furthermore, it violated my old boss' assertion to "tell it early, tell it all, tell it yourself." Every time a tiny new tidbit leaks out about the program, it only serves to raise more questions about what the White House is hiding. The time has come to rip the band-aid off.
President Obama should release the redacted version of the memo today — not just to congressional committees, but to everyone — and be done with it. The argument that international law, domestic law, or the United States Constitution forbids the government from targeting an individual who is directly participating in hostilities against the United States of America and instead requires the government to send forces into harm's way to arrest and Mirandize said person is demonstrably false. By refusing to make the OLC memo public or comment on the program, the government allows its critics to cast its actions as criminal.
Jeb Golinkin is a 3L at the University of Texas School of Law and writes about U.S. politics and policy for TheWeek.com. From 2008 to 2011, he served as an editor and reporter for Frum Forum/New Majority. Follow him on Twitter (@JGolinkin) and email him at jgolinkin@gmail.com.
