After 21 requests, Obama administration coming clean about drone policy

By Eric Boehm | Watchdorg.org

Faced with the threat the U.S. Senate would block judicial nominees, the Obama administration announced this week it would release the so-called “drone memos” outlining the supposed legal rationale for using drones to attack and kill American citizens.

The “most transparent administration in history” just needed to be asked 22 different ways.

The Associated Press reported Tuesday afternoon the administration decided to drop an appeal of a court ruling that required the disclosure of the memos, which paves the way for the memos to be released under the Freedom of Information Act.

The tipping point seems to have come earlier this week when U.S. Sen. Rand Paul, R-Ky., said he would filibuster David Barron’s appointment to the U.S. Court of Appeals unless the memos were made public.

At the center of the controversy is the legal underpinning for the administration’s decision in 2010 to use a drone strike in Yemen to kill Anwar al-Awlaki and his son, American citizens believed to be working for al-Qaeda. Barron, a Harvard Law professor, authored two of the secret memos.

“I can’t imagine appointing someone to the federal bench … without fully understanding that person’s views concerning the extrajudicial killing of American citizens,” Paul wrote in an op-ed that appeared Sunday in the New York Times.

Paul gained national attention for a 14-hour filibuster last year on the topic of — what else — the legality of the Obama administration’s drone strikes.

From Paul to the ACLU, the issue united libertarian-leaning individuals and groups from across the political spectrum.

But Paul was hardly the only member of Congress to ask the Obama administration to explain why the U.S. Constitution’s promise of due process and a trial by jury did not apply to al-Awlaki — and what the administration saw as the limits to its extra-judicial fiery-death-from-above powers.

Marcy Wheeler, an independent journalist who follows national security and counterterrorism issues, has tracked the 21 separate occasions when members of Congress asked for that information, starting in February 2011, when U.S. Sen. Ron Wyden, D-Ore., sent a letter to the director of National Intelligence asking for the legal rationale for the drone killings.

As Wyden noted in that first request, members of Congress cannot begin to understand how the executive branch views its legal authority when that authority is developed in secret legal documents that the Justice Department would not turn over to Congress.

“I understand that government officials who choose to rely on secret law almost invariably believe that their decision to do so is justified, and that their secret interpretations of the law would stand up to public scrutiny,” Wyden wrote at the time. “But the only way to find out whether this is true is to ensure that this public scrutiny actually takes place.”

The requests have continued, with regularity, through March of this year, when U.S. Rep. Barbara Lee, D-Calif., and seven of her fellow Democrats, wrote a letter directly to Obama seeking the release of the legal memos.

“Every American has the right to know the underlying legal rationale that ensures due process,” the eight lawmakers wrote. “Authorizing the killing of American citizens and others has profound implications for our Constitution, the core values of our nation, our national security and future international practice.”

Finally, it seems, the message from Paul and a host of others is being heard.

Boehm can be reached at EBoehm@Watchdog.org and follow @EricBoehm87 and @WatchdogOrg for more.