Should the President of the United States be able to conduct secret operations and activities without revealing to Congressional oversight committes the legal memoranda on which he is relying in making such decisions?
The subject came up, again, in the Senate Intelligence Committee confirmation hearings for Carolyn Krass to become the CIA’s top lawyer, on December 17, 2013.
The cute argument made in defense of the refusal to hand over certain memos relating to torture and other covert activities, prepared by the Justice Department’s Office of Legal Counsel (OLC), is that they could not be turned over because they were “pre-decisional” and needed to be kept secret to protect free debate among the president’s advisors.
This argument (with its echoes of a claim of Executive Privilege) is misleading and obscures the central fact that, in a democracy, congressional committees with responsibility for oversight of covert activities need to know the legal basis on which the president has authorized certain covert or secret activities. Without access to the written legal justifications upon which the president relied, they cannot effectively exercise oversight of the legality of the activities involved.
What the country needs is for top lawyers, from outside the national security coterie of lawyers who have been in the national security loop in the government while they or other lawyers supported torture, extraordinary renditions, targeted executions, and a whole range of covert activities in different countries, to come in and assume the top legal positions at the CIA, the State Department and other key institutions.
Such new lawyers from the outside will bring with them a fresh perspective, and a fresh approach to what is really legal or not. That is both the reason their appointment will be fiercely resisted and the reason such resistance must be overcome. Those in the government who have been working on these issues may well have an inkling of how an unbiased eye might appraise their work.
Only then will the Congress and the American people have confidence in the constitutionality of the covert actions undertaken, and in their legality under international law.
Government of the people, by the people, and under the rule of law cannot abide secret legal justifications for covert activities, whose very occurrence is itself wrapped in secret.
See Josh Gerstein, “Judge orders Obama foreign aid order released, Politico, December 17, 2013 (6:16 p.m. EST).
See also, on the question of whether in a democracy the government can rule by secret laws, upheld by secret courts, and never exposed to the light of day,
“Secret Laws, the John Brennan vote, and the rule of law,” The Trenchant Observer, February 24, 2013
Secret laws, secret legal analyses, secret legal memoranda, and secret judicial decisions, it should be recognized, represent key building blocks for a totalitarian state.
See “The Disposition Matrix”: Is Obama laying the foundations of a future totalitarian state?” The Trenchant Observer, July 18, 2013, (Updated July 27, 2013).
In this article, the Observer explains,
The disposition matrix is just one piece of architecture which when used by others in the future could form part of a totalitarian state.
Other elements would be total surveillance of individuals in society who might pose a challenge, any challenge, to those who control the machinery of the state. Another would be the ability of the government to influence and move public opinion by using personal data to sway voters in electoral campaigns, as the Democrats and Obama did so successfully in the 2012 elections.
Another element would be the use of secret laws and secret legal justifications, and the state secrets privilege, to avoid public debate and public challenges in the courts to governmental actions violating basic constitutional rights (e.g., free speech, due process, Fourth Amendment protection against unreasonable searches and seizures, etc.).
A final element would be control of the flow of information, an enterprise in which Google has been obtaining vast experience, dealing with authoritarian regimes throughout the world.
No nominee to be General Counsel of the CIA or any nominees for to be a top legal official at another agency should be confirmed if he or she is unwilling to commit to sharing with the Senate and House Intelligence Committees the legal basis, expressed in written analyses and memorands, for covert activities and operations authorized and carried out by the President of the United States.
The essential and core elements of a democratic state governed by the rule of law are at stake.
There can never exist such a thing as the secret “rule of law”.
The very concept is an oxymoron. The reality of efforts to use secrecy to avoid accountability before the law (as interpreted not only by the Executive but also by the Congress and by the Supreme Court) represents a mortal threat to any democracy, including the American Democracy.
The Trenchant Observer