Trevor Timm / The Guardian & Spencer Ackerman / The Guardian – 2015-04-21 00:43:25

http://www.theguardian.com/commentisfree/2015/apr/15/shroud-secrecy-us-drone-strikes-abroad-must-lifted

(April 15, 2015) — It’s been over two years since President Obama promised new transparency and accountability rules when it comes to drone strikes, yet it’s become increasingly clear virtually no progress has been made. The criteria for who gets added to the unaccountable ‘kill list’ is still shrouded in secrecy — even when the US government is targeting its own citizens.

We know because a Texas-born man named Mohanad Mahmoud Al Farekh recently captured overseas was arraigned in federal court this week, but he’s actually lucky to be able to have his day in court. It turns out, as the Times reported, that in 2013 “his government debated whether he should be killed by a drone strike in Pakistan.”

The CIA and military — and bizarrely, the House intelligence Committee, which is supposed to be conducting oversight of drone strikes, not cheering them on — were reportedly pushing hard to send drones to kill Al Farekh, but the Justice Department didn’t think there was enough evidence to meet the supposed threshold, that required him to be an “imminent” threat and “senior” member of al-Qaeda. (It’s also worth noting that the definitions of both “imminent” and “senior” have been quite warped beyond recognition in past drone strikes).

In the terrorism charges against Al Farekh he is accused of neither, which strongly suggests, as law scholar Brett Max Kaufman writes, that the Pentagon and the CIA “are willing to push to kill an American citizen based on information so unreliable (or perhaps so tainted by violations of al-Farekh’s constitutional rights) that it could not be put into a criminal complaint.”

Despite the Attorney General’s aversion to constitutional due process when it comes to killing Americans overseas, at least he was able to hold strong in this particular instance. Keeping the military from launching strikes, even with such guidelines, isn’t easy. Former Pentagon General Counsel Jeh Johnson told 60 Minutes last week about that, when it comes to approving or rejecting the military’s request for drone strikes, “to say no is like stepping in front of a 90-car freight train.”

An important new report released by the Open Society Justice Initiative this week also shows that — despite the Obama administration’s internal requirements for drone strikes that supposedly require a “near certainty” that civilians won’t get killed — the government quite often just disregards its own rules, which has led to the death of dozens of civilians in Yemen in the past two years.

Though without Open Society’s study, the public would have no clue, since the Obama administration still steadfastly refuses to officially release any information on drone strikes in Yemen.

The success of the Al Farek case, along with interviews from witnesses in the drone study, raises huge questions as to why the military hasn’t attempt to capture more suspects so they can justice in court before sending drones to kill them. The administration has said for years it prefers capturing to killing — but the data indicates that they practice the opposite, as Micah Zenko detailed in Foreign Policy.

What’s also disturbing is that the Obama administration continues to launder the details of its drone policy and programs through the media to avoid accountability. In the drone study story, for instance, the Times quoted from an anonymous “American official” who would only speak “about the classified operations on the condition of anonymity.”

The Times’ story on Al Farekh was based on “interviews with more than a half-dozen current and former senior American law enforcement, intelligence, military and counterterrorism officials, who spoke on condition of anonymity because of the pending criminal case.”

In other words, the reporting is all based on leaks that are — in the government’s interpretation of the law — illegal, but which it’s clearly happy to overlook. The administration’s willingness to tolerate drone leaks when it suits their interest is just another example of the government sanctioning — with a wink and a nod — leaks of classified information for which they often prosecute others.

But in an ironic twist, these are the exact types of leaks that forced the government to reveal one of its legal rationales for killing Americans overseas in the first place. The US court of appeals for the second circuit ruled last year that the Obama administration had itself leaked classified information so many times to the media that it could not possibly claim that its legal rationale for killing Americans aboard should stay secret, and forced them to release it. (A previous judge had referred to the government’s convoluted and hypocritical secrecy policy around killing Americans as something out of “Alice in Wonderland.”)

As you might expect, this didn’t stop the government from fighting tooth and nail from releasing any of the other legal opinions regarding secretly killing Americans. And last week, their argument took a turn for the even-more-absurd. Buried in a bland footnote in a court filing recently was a government argument that ACLU deputy legal director Jameel Jaffer characterized as “truly remarkable — unreal, one might even say.”

Though the court forced the government to release its targeted killing memo to the public (which you can read here), the government still somehow considers the memo officially classified.

On the bright side, at least this means there is one point in which all sides can agree on: reality has nothing to do with the government’s extreme position on secrecy.

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