Media Criticism

How Government Silence Undermines Terrorism Policies: Part II

By Richard H. Pildes, Lawfare Staff
Sunday, March 4, 2012, 5:26 PM

Attorney General Eric Holder will apparently give a public address on Monday that will provide a fuller explanation and justification for the government's policies on targeted killings, including for the targeted killing of an American citizen in Yemen. Other administration officials, including the top lawyers in the State Department (Harold Koh) and Department of Defense (Jeh Johnson), and John Brennan, the Obama administration’s top counterterrorism adviser, have provided some public discussion of these issues before. News accounts have reported, however, a long internal administration discussion about whether to provide a fuller public account of these policies. I am glad to see, therefore, that this debate is being resolved in favor of greater openness of government officials to public discussion.

In an earlier post, I explained why the credibility and sustainability of government policies on terrorism require government to be more forthright about the bases and explanations for its actions in this arena. In that post, I argued that the general dynamic of terrorism policy requires government to accept greater responsibility to explain its actions: "government actors need to recognize that these kinds of coercive and less familiar powers will understandably and predictably trigger concerns in many quarters about whether what is being done is justified; whether the actions rest on sound reasons; and whether the government is using these powers in appropriately restrained ways, including showing appropriate respect for the interests and values that these policies sometimes override (that is, are these values being compromised no more than necessary to accomplish the government’s legitimate aims). If government is going to use these powers, yet maintain credibility, it needs to “give back” to these understandable concerns by being more forthcoming than has typically been the case.

In this post, I want to explain why the political economy of public discourse on terrorism policy provides a further reason government must recognize the need to engage with the public. Government today is in a constant battle for its own credibility. In the context of terrorism policies, numerous non-governmental organizations now exist (unlike many decades ago) whose essential purpose is to reflect distrust of government; to monitor government; and to criticize and challenge government, in part, as these groups would see it, to keep government honest. Precisely because these groups have no direct political power, one of their main roles is to seek to mobilize public opinion, including through a strong media presence.

But few if any countervailing non-governmental organizations are devoted, of course, to the opposite perspective -- that is, to defending government action as their raison d'etre. And modern journalistic culture, too, is based on the view that the media needs to turn a constantly skeptical or demanding eye on government policies, particularly coercive and less familiar ones. Partisan political actors, too, have their own incentives to seek to undermine the credibility of their opponents in power, including with arguments alleging lawless action.

In this larger context, government simply has to be an active, full, constant participant in order to defend and justify the credibility of its actions, including their legal basis. An occasional government spokesperson offering a few words in explanation is far from sufficient. Many explanations no doubt exist for government’s failure to more effectively explain itself: it might take many actors to clear release of a document or explanation; government is inherently risk averse; actors might fear that releasing explanations will only lead to further questions; government lawyers are used to limiting their comments to courtroom settings, and the like. But when government refuses to provide a full accounting, it leaves other actors uncertain about how to respond, including those who might support the government legal position, were that position fully known and disclosed. Where legitimate needs for secrecy exist, those of course should be respected. But this general absence of full participation makes government appear defensive; it is self-undermining. To sustain the credibility of controversial but possibly necessary and justified terrorism policies, government must disclose more and participate more actively in the public sphere.

Perhaps the decision to have the Attorney General give a public address on targeted killings reflects similar analysis inside the administration. If so, it is a welcome development.