On Monday, a three-judge Second Circuit panel ordered the Obama administration to disclose a redacted copy of the Office of Legal Counsel memorandum outlining its legal justification for the targeted killing of New Mexico-born Anwar al-Awlaki. The decision is being cast as a triumph for transparency, and a clear admonition of presidential secrecy with respect to the government’s drone program. But the court’s analysis could also be read as just the opposite: the Obama administration’s mistake lies not in saying too little, but in saying too much.
The careful wording of the court’s key finding is revealing: “After senior Government officials have assured the public that targeted killings are ‘lawful’ and that OLC advice ‘establishes the legal boundaries within which we can operate,’ and the Government makes public a detailed analysis [redacted], waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.” If allowed to stand, the decision would seem to give President Obama and future administrations strong reason to publicly concede as little as possible with respect to any program for which they seek to invoke exemptions under FOIA.
Steve makes this very point over at Just Security. But Steve expresses concern about the ways in which the court’s decision may disincentivize selective disclosure despite also contending that selective disclosure of secret legal rationales is anyway of little value to either the government (because it only emboldens the government’s critics) or the public (because it does not advance public understanding of the government's actual justifications). Over at the emptywheel blog, Marcy Wheeler has espoused a stronger variation of this premise---that selective disclosure is more bad than good insofar as it amounts to “false transparency”---but has taken this to what I see as the more logical endpoint: that eliminating the administration’s ability to rely on this particular “release valve” may be a positive development.
I suggest a different endpoint, based on a different premise: the Second Circuit’s decision is problematic insofar as it may discourage selective disclosure of secret legal rationales going forward because such disclosure does hold some value for both the government and the public. After all, we have to consider the cons that accompany the alternative wherein the government systematically targets individuals, including U.S. citizens, but refuses to state or explain that it does so in conformance with the law (this is not the only alternative but it is certainly a possibility).
Up to this point, as a matter of foreign as well as domestic policy, it would seem the U.S. government has had strong incentives to do what it has done: claim that its operations are legal, and offer a high-level discussion of what it considers to be the relevant parameters of legality (in the international law context, for example, those parameters are the principles of proportion, distinction, humanity and military necessity). Meanwhile, knowing something about the legal framework that the government considers applicable to its operations has enabled critics to focus on challenging the validity of the government’s position on its own terms. For instance, rather than assert that al-Awlaki was not entitled to due process, the Obama administration has asserted that due process need not include judicial process; under this view, the “process” that a citizen overseas is “due” boils down to a balancing test, a la Mathews v. Eldridge (quite the stretch, given that was a civil case addressing whether an individual is entitled to a hearing before his Social Security benefits are terminated, not before he is terminated). The fact that the government acknowledges all U.S. citizens are entitled to due process eliminates the need for critics to argue that point and, as I have suggested elsewhere, makes critiquing the government’s (re)definition of due process a logical starting point in the debate over the legality of targeted killings.
All in all, if the selective disclosure of secret legal rationales is better than no disclosure at all, then the Second Circuit’s decision may be as much a loss for transparency advocates in the long-term as it is a win in the short-term.
Before assuming the Second Circuit’s decision actually discourages selective disclosure, however, we should note the significance of two features of the opinion: (1) it discusses sufficient but not necessary conditions for waiver, and (2) it limits its discussion to official disclosures.
On the first point, to determine whether the legal analysis in the OLC-DOD memorandum was waived, the court identifies the "numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists." The court specifically cites then-Legal Adviser Harold Koh's 2010 ASIL speech, Attorney General Eric Holder's 2012 Northwestern speech, then-DOD General Counsel Jeh Johnson's 2012 Yale Law School speech, and John Brennan's 2012 Wilson Center speech. But in essence, the court declines to decide whether these statements are sufficient to constitute waiver, since the DOJ White Paper does the trick.
On the second point: this is a FOIA case, so the Second Circuit confines its waiver discussion to the implications of official disclosures. This leaves open the possibility that in place of official selective disclosures, the government may simply rely more heavily on leaks (under Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009), statements made by unidentified sources do not constitute official disclosures). Planted leaks accomplish many of the same goals of official selective disclosures and are subject to many of the same criticisms. David Pozen has argued, forcefully, that revealing minimal information about the purpose and nature of the drone program through ostensibly unauthorized leaks would enable the administration to signal its respect for the law without being compelled to disclose more (the more negative spin is that selective disclosures, official and unofficial, amount to the executive branch "cherry-picking" information that attests to the legality of the drone program and excising information that undercuts it). This splitting-the-difference, have-your-cake-and-eat-it-too approach would become a unique feature of leaks, rather than a characteristic of selective disclosures generally, if the administration decides that official disclosures are likely to be construed by the courts as waiver.
Reliance (or increased reliance) on deliberate leaking would be a bad development, for transparency and for the rule of law. As Jack pointed out back in 2011, it would be unlawful and diplomatically problematic for the Executive "to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications.”
A last corollary: all of this adds kindling to the slow-burning question of whether statements by members of Congress constitute official disclosure.