Executive Power

DOD’s Weak Rationale for Keeping Enemy Identities Secret

By Jack Goldsmith
Friday, July 26, 2013, 11:07 AM

Cora Currier at Pro Publica has an important story on why DOD won’t publish the list of AUMF “associated forces” against whom we are at war.  DOD’s rationale:

A Pentagon spokesman told ProPublica that revealing such a list could cause “serious damage to national security.”

“Because elements that might be considered ‘associated forces’ can build credibility by being listed as such by the United States, we have classified the list,” said the spokesman, Lt. Col. Jim Gregory. “We cannot afford to inflate these organizations that rely on violent extremist ideology to strengthen their ranks.”

I am quoted in the article as finding this rationale “weak,” and would like here to expand my reasoning, and add a few points.

First, DOD says it must keep the identities of our enemies secret so as not to “inflate” or enhance their “credibility.”  I suppose the idea, viewed charitably, is that being a named enemy of the United States can spur recruitment and might enhance the group’s interest in targeting U.S. interests.  Still, “inflating” the enemy is a pretty soft criterion for keeping its identity secret.  After all, the premise of for including a group on an AUMF list is that the AQ-associated force is (in the Obama administration’s typical formulation) “engaged in hostilities against the United States,” and presumably the fact of being on the receiving end of U.S. or U.S-supported military operations can be known locally and a spur to recruitment regardless of USG acknowledgment.

Second, the USG has acknowledged that at least two groups (al Qaeda and AQAP) fall under the AUMF, and it has (in WPR reports, for example) implicitly acknowledged that a third group (elements in al Shabbab) does as well.  The language of the DOD release suggests that at least a few more groups (or elements of groups), and maybe many more groups (or elements), are on the AUMF “list.”  The existence of a “list” (which was unclear in the May 2013 AUMF hearing), and the fact that there may be at least a few groups (or elements of groups) on it, is itself news in the AUMF-watcher world.  It is also consistent with suggestions and implications in reports, such as in Mark Mazzetti’s book, that the AUMF is being invoked in various ways by DOD Special Operations Forces for non-covert military activities in many countries around the globe.

Third, it is entirely unclear why the USG can acknowledge some groups without unduly “inflating” them, and not others.  And this in turn makes me skeptical of the notion of “inflation.”  To be sure, some groups that are AUMF-able (such as, perhaps, the Haqqani network, a known but not acknowledged U.S. target) perhaps cannot be named because the operations are covert actions and involve deals of non-acknowledgment with foreign governments (or elements of foreign governments).  But that cannot be a comprehensive explanation for DOD’s secrecy.  By stating that disclosure of groups on the list would “reasonably be expected to cause serious damage to the national security,” DOD has tipped off that the list is classified only at the secret (as opposed to top secret) level.  (See Section 1.2 of E.O. 13,256.)  Covert actions are typically classified at the top secret level.  This implies (but does not prove) that some if not all of the AUMF-groups in question are not subjects of covert actions.

Fourth, the fact that the “list” is classified only at the secret level suggests the perceived national security harms from disclosure are not that high.  And of course, there is a countervailing interest in disclosure that the DOD statement does not discuss: The American People’s interest in knowing against whom, and where, U.S. military forces are engaged in war in its name.  Such knowledge – which at the May AUMF hearing many members of even the Armed Services Committee seemed to lack – is minimally necessary for the American people to assess the quality, prudence, and necessity of our military efforts.  This is especially so since the administration’s interpretation of the AUMF seems fluid and broad, and might include (again, as the DOD officials suggested in May) many groups in many places.

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We are in the twelfth year of the much-changed AUMF-war, and the war we are now fighting is barely known to the American people.  I am confident that DOD has good reasons for keeping the identities of our enemies secret.  But the secrecy is also to some unknown degree self-serving, for it deflects painful scrutiny that DOD would rather avoid.  On an issue as fundamental as the identity of the enemy in war, the bar for secrecy should be very high, and DOD should have a more convincing explanation than the one it provided to Currier.  This is especially so, of course, since President Obama pledged in his State of the Union address that his administration would be “even more transparent to the American people and to the world” on issues related to the “targeting, detention and prosecution of terrorists.”  This promise remains unfulfilled.  Courier’s story, coming on the heels of DOD officials’ obvious discomfort with transparency in the May hearings, suggests that it will continue unfulfilled, at least with regard to the basic nature and scope of the AUMF war.