#davidcole

Now that we can finally see its contents, the biggest question is why the administration fought to keep it secret. The memo does more to help than to harm the administration. . . .  Had this memo been made public at the outset, the administration might well have avoided many of the questions that continue to swirl around the drone program and make it controversial worldwide. Transparency is often touted as a check on the abuse of power, and it is. But transparency can also legitimate acts that, taken behind closed doors, are illegitimate. In this instance, the administration’s insistence on secrecy undermined its own cause.

. . .  [A]s it was, the image the US presented was of the most powerful country in the world secretly executing individuals half a world away, and refusing even to admit it was doing so, much less be tested on whether its actions were lawful.

Professor Cole concludes his commentary by raising four areas of concern that remain unanswered either by the White House's redaction of information from the memo or failure to address altogether:

With the redaction of virtually all facts supporting the charges that al-Awlaki posed an "imminent" threat and that capture was "not feasible" for the fifteen months before the strike, how can the administration demonstrate what actually constitutes an "imminent" threat or when capture is "not feasible"?

While the memo is tailored specifically to the facts surrounding al-Awlaki, it repeatedly states that its analysis does not mean lethal targeting would be unlawful in other circumstances.  What does this mean for the U.S. drone strike policy that has already killed thousands of individuals?  Do different standards apply to the killing of foreign nationals?

The administration continues to engage in secret, unacknowledged drone strikes, which the U.S has no apparent obligation to report on.  Maintaining the drone program as a clandestine operation only continues to permit the administration to deny any responsibility for the deaths of innocent bystanders.

There is no mechanism in place for independent testing of whether each individual drone strike actually satisfies each condition outlined in the memo.  Without any accountability measures that could assess the validity and consequences of each attack, why would the world think the US is operating within the law.

Professor Cole has repeatedly used the New York Review of Books for insightful essays on secrecy and national security.  This latest piece is worth your time to read.