It’s not just the Obama administration’s counter-terrorism activities which are shrouded in secret; the very legal framework for those activities is highly classified. To put it another way, the American people have no way of knowing what the White House believes it is empowered to do in the name of keeping them safe.
On Sunday’s Up with Chris Hayes, investigative journalist Jeremy Scahill said he had recently spoken to Senator Ron Wyden (D-OR) about this two-tiered legal structure. Wyden “said the American people would be shocked if they were allowed to access the administration’s interpretation of the same laws that the American people can read publicly,” said Scahill, a reporter for The Nation. “In other words, Wyden said, there are two sets of laws in this country: One that the American people are allowed to read, and then one which exists in secret, which is the administration’s interpretations of those laws.”
This is not the first time Wyden has brought attention to the Obama administration’s secret legal interpretations. In May 2011, as Congress was preparing to renew the PATRIOT Act, he revealed the existence of what became known as the “secret PATRIOT Act”: the Obama administration’s classified interpretation of that law, which Wyden said grants them far more expansive powers than Congress or the public could have ever anticipated. Cato Institute research fellow Julian Sanchez, an expert in privacy issues, believes the secret interpretation “probably involves some form of cellular phone geolocation tracking, potentially on a large scale.”
The legal regime governing extrajudicial killings is also secret. The Obama administration has long maintained that it has the authority to order the assassination of suspected terrorists—including American citizens—without any judicial oversight. Allegedly, American drones have killed three American citizens in Yemen, including a seventeen-year-old boy. However, when the ACLU sued the Justice Department to obtain the memo that would legally justify one of those killings, the government replied that it had never ”officially acknowledged” the existence of any such memo, and furthermore that it had ”neither confirmed nor denied” the existence of a targeted killing program.
Scahill said he asked Wyden, a member of the Senate Intelligence Committee, about the targeted killing program. “They’re supposed to be briefed about many of these sensitive operations,” Scahill said. “I was asking him about this process for how an American citizen ends up on a kill list. And what Wyden was saying was that he believes that the Intelligence Committee hasn’t had that fully explained to these people with these special security clearances.” Whereas Wyden had access to the secret PATRIOT Act, the full scope of the law governing targeted killings may be secret even to him.