Good news: thanks to a ruling by the 2nd U.S. Circuit Court of Appeals Monday, the "most transparent administration in history" is going to have to tell American citizens when it believes it's legally entitled to kill them.
The lawsuit arose out of Freedom of Information Act requests by two New York Times reporters for Office of Legal Counsel memoranda exploring the circumstances under which it would be legal for U.S. personnel to target American citizens. The administration stonewalled, asserting that "the very fact of the existence or nonexistence of such documents is itself classified," and a federal district judge upheld the refusal in January 2013.
A month later, however, someone leaked a Justice Department "white paper" on the subject to NBC News, forcing a re-examination of the question in light of changed circumstances. On Monday, the three-judge panel held "it is no longer either 'logical' or 'plausible' to maintain that disclosure of the legal analysis in the Office of Legal Council-Department of Defense Memorandum risks disclosing any aspect" of sensitive sources and methods.
In matters of transparency, the Obama Team can always be counted on to do the right thing — after exhausting all other legal options and being forced into it by the federal courts.
When "peals of laughter broke out in the briefing room" after then-press secretary Robert Gibbs floated the "most transparent administration" line at an April 2010 presser, the administration should have taken the hint. But it's one soundbite they just can't quit. Gibbs' successor Jay Carney repeated it just last week, as did the president himself in a Google Hangout last year: "This is the most transparent administration in history…. I can document that this is the case."
Actually, any number of journalists and open government advocates have documented that it's not. As the Associated Press reported last month: "More often than ever, the [Obama] administration censored government files or outright denied access to them last year under the U.S. Freedom of Information Act."
It wasn't supposed to be this way. In the hope-infused afterglow of his first inauguration, President Obama declared, "for a long time now, there's been too much secrecy in this city," and ordered his attorney general to issue newly restrictive standards for government use of the "state secrets privilege," which allows the government to shield national security secrets from civil or criminal discovery. Attorney General Eric Holder pledged that the administration would not "invoke the privilege for the purpose of concealing government wrongdoing or avoiding embarrassment."
Easier pledged than done, apparently. Earlier this year, in a case involving a Stanford graduate student erroneously placed on a no-fly list, we learned that the government had cried "state secrets" to cover up a paperwork error. Holder himself assured the court that assertion of the privilege was in keeping with the new policy of openness. When the presiding judge found out the truth, he said: "I feel that I have been had by the government."
In fact, the Obama administration has driven state secrecy to new levels of absurdity. We're not even allowed to know who we're at war with, apparently, because letting that secret slip could cause "serious damage to national security."
Over the last year, thanks in large part to illegal leaks, we've learned that we're living in a [REDACTED] republic. In the president's version of "transparency," the Americans have no right to debate even the most basic public questions–like the legal standards for spying on or killing American citizens–unless, of course, that information leaks, at which point the administration "welcomes" the debate.
This column originally appeared in the Washington Examiner.
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