On the Benefits of Transparency: Why So Long to Disclose Drone Memo?

Monday’s release of the previously secret July 2010 Justice Department memo laying out the legal case for killing US citizen, Anwar al-Awlaki, has sparked a wide range of reactions, some of the more thoughtful offered by Steve Vladeck and Jen Daskal here.  I have just published my own take on the New York Review of Books blog.

In my essay, I take a generally positive view of the memo’s legal analysis, and take issue with the New York Times’ editorial board’s misguided critique of the memo.  But as readers of my previous writings will not be surprised to learn, the memo has not transformed me from a longtime critic to a defender of the program.  Rather, I argue that the memo’s release demonstrates the considerable benefits of transparency.  Had the administration released this memo much earlier, rather than fighting efforts to release it through FOIA litigation, it would have done itself – and the world – a favor.

In short, much of the problem with the drone program stems from its secrecy.  When the world sees the United States killing thousands of people by remote control, and at the same time refusing even to acknowledge that it is doing so, the world justifiably fears the worst.  If no legal limits are set forth, why shouldn’t people fear that the US is asserting a limitless power to engage in distance-killing?  Why couldn’t it kill a terror suspect sitting at a café in Paris, and thereby avoid all the difficulties of extraditing, trying, and sentencing him?  The release of the OLC memo is an important step towards transparency, but if the United States is to disabuse the world of the considerable skepticism it has understandably developed about this program, it will have to go much further. For more, see my New York Review of Books blog post. 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).