Americans don’t expect to know the government’s military or espionage secrets. They do have a right to understand the law.
And the government is denying Americans access to the secret legal opinions that outline the government’s basis for the targeted killing of Americans believed to be terrorists.
Oregon’s Sen. Ron Wyden, a Democrat, recently asked the Obama administration to change its policy. Wyden wrote a letter to Deputy National Security Advisor John Brennan, who is seeking to become the next director of the Central Intelligence Agency. Wyden asked Brennan to provide to himself and other members of the Senate Intelligence Committee the legal opinions used by the government to justify killing its citizens.
Wyden’s letter raises a difficult question: How much can the public know without jeopardizing the government’s ability to keep it safe?
It is not a debate so much between a right and a wrong, but a debate between two rights. Neither the public’s right to know nor the public’s security can be taken for granted. Just as terrorism presents a danger to Americans, so does the failure of the government to explain the law. If Americans do not know the law, they cannot know if they believe that the government is operating appropriately.
The administration has made some effort to generally describe its process for the targeted killings. It has declined to release any specific legal memorandum.
Legal efforts to dislodge the information have failed. Earlier this year, a federal judge in New York declined to order the release to The New York Times of a memorandum providing the legal justification for the killing of a United States citizen, Anwar al-Awlaki. He died in a drone strike in Yemen in 2011.
Judge Colleen McMahon admitted her ruling had an “Alice-in-Wonderland nature.”
“I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret,” she wrote.
The Obama administration should end the uncertainty. It should release the legal opinions — at least to the senators on the Intelligence Committee. That would be a minimum level of accountability. Representatives of Americans will know the laws of their country and be able to decide if the government is striking blindly and fiercely at suspects or not being fierce enough.