Secrecy & Leaks

How Government Silence Undermines Terrorism Policies: Part One

By Richard H. Pildes
Sunday, October 9, 2011, 3:27 PM

I want to put discussion of whether the government should publicly disclose the full legal framework behind its targeted killings program, including the killing of Al-Aulaqi, an American citizen, in a larger and more general philosophical and political context. Across administrations, government consistently undermines itself, in my view, by failing to participate more publicly in providing full explanations for its justifications, including legal ones, for its terrorism policies.

In this post, I’ll explain the general dynamic of terrorism policy in the larger public sphere that government seems not to appreciate adequately. In a second post, I’ll suggest why government also fails to recognize adequately the political economy in which these debates take place today.

The General Dynamic of Terrorism Policy. As we have seen across two administrations since 9/11, modern terrorism confronts government with certain challenges different from more conventional crime. In response, government might conclude that pragmatic, functional, and effective responses require adapting policy to these new circumstances, including using powers not used in ordinary times or in response to conventional crime. Some of these powers might have deep roots in past American practice and law during conventional wars (such as detention); others might be relatively more novel (targeted killings). These policies involve particularly aggressive uses of coercive, even lethal power; they are unfamiliar, not only to most citizens, but to many legally educated actors, since the last use of even the more familiar of these powers was, essentially, almost 70 years ago during WW II. The policies might (or might not) be functionally appropriate, effective, and legally justified. But 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, it needs to “give back” to these understandable concerns. Yet consistently since 9/11, government has tended to do much less on this front than it should. Astute policymakers should recognize that the tradeoff for deploying these powers is that government assumes a greater burden to provide as full a public accounting and explanation of why it is using these powers, how they are being used, with what internal substantive and process-based constraints, and within what understanding of the legal principles involved. As scholars of the presidency going back at least to Richard Neustadt have observed, the effective power of a president – and of government – is bound up in the credibility of the president’s actions, including the basis for them. The capacity of the government to sustain these kinds of policies over extended periods of time is intimately tied to the credibility of these policies in various audiences, such as Congress, the courts, and public opinion. Where international cooperation and support is inevitably required, these policies will also have to have some degree of credibility in those audiences as well to elicit continued cooperation. And if this was true when Neustadt first wrote on the eve of the 1960s, it is true in spades today. Government actions today, including many previously secret ones, quickly get disclosed in the modern age of digital cameras, the internet, a vast array of non-governmental organizations that exist to monitor government conduct, and a journalistic culture that thrives on exposing the government’s actions. The credibility of government action, even legitimate, justified action, can easily be undermined, including by misperceptions, misunderstandings, or willful distortion, if government does not participate actively in putting forth the reasons for its actions in a credible, public way.

Greater government participation can take many forms, with the context dictating the appropriate form: in some contexts, release of appropriately redacted legal memoranda; in other contexts, providing in other ways a clear statement of the legal framework under which the government operates (rather than through occasionally leaks to the press); in these or other contexts, having senior government officials, including lawyers, publicly explain these justifications – and to do so repeatedly, in numerous contexts. But given the inherent dynamic of the novel policy changes terrorism generates, government must recognize more effectively the need to become a more active participant in publicly justifying, explaining, and defending its policy and legal choices.