UPDATED: Drone Program Secrecy Violates Constitution

TCP’s Liberty and Security Committee released a statement on February 25 arguing that the Obama administration’s refusal to make public the legal rationale for its targeted killing of suspected terrorists violates constitutional principles of checks and balances, and calling on the president to release the rules of operation and all legal guidance about the program to Congress and the public.

“Our constitutional system of checks and balances demands robust oversight by Congress and consideration and debate by an informed public. Neither is possible when the rules are hidden from Congress and from public view,” committee members wrote.

The statement urges the president to authorize public release of all opinions from the Justice Department’s Office of Legal Counsel (OLC) regarding the scope of the president’s targeted killing authority along with “any other operative rules and legal guidance for the targeted killing program,” redacted only to protect “properly classified information, such as the facts of a particular case or intelligence sources and methods.”

Entitled “Lift the Veil of Secrecy on Targeted Killing,” the statement was joined by 24 members of the Liberty and Security Committee, including former members of Congress, former high-ranking intelligence and military officials and legal scholars.

UPDATE: On March 5, 2013 – in the face of bi-partisan pressure, including from within Congress – the administration reportedly provided the House and Senate Intelligence Committees with all of the OLC opinions relating to the targeted killing of American citizens during counterterrorism operations. The administration also agreed to allow at least one staffer per member to review the documents.

These are welcome and important developments, but they are not sufficient to restore checks and balances to a national security program with such grave consequences. The public deserves to know the rules under which our government operates, and all congressional committees of jurisdiction should have access to comprehensive information about the targeted killing program.  The Senate Judiciary Committee, for example, has also demanded access to the law and procedures that govern targeted killing, but has so far been rebuffed.  Our Committee is clear that “[f]or the president to withhold information from Congress regarding a program that Congress must fund … violates constitutional principles of checks and balances.”

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