Our war on terror is nearly 13 years old. And while we are thankful there have been no large-scale attacks on our homeland since 9/11, we are troubled by how little we know about what is being done to protect us. Consider two developments last week:
• Monday, the U.S. Justice Department declassified the legal memo used by President Barack Obama to justify a 2011 drone strike in Yemen that killed an American citizen who had become an al-Qaida leader. Targeted killings using unmanned drones have been a major weapon abroad, with literally thousands of attacks; hundreds of innocent civilians have been killed.
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• Tuesday, a federal judge in Portland ruled the government doesn’t give people an adequate way to get off its secret no-fly list. That list is a key counterterrorism tool.
Four Americans have been killed by drones, but only one on purpose – Anwar al-Awlaki, a radical cleric who was born in New Mexico. The newly released legal memo parroted the administration’s argument that al-Awlaki could be targeted without violating U.S. law because he was a senior member of a terrorist group that posed a continuing threat and because he could not reasonably be captured to stand trial.
The 16-page memo – or at least the portions not blacked out – was released only after a federal appeals court ruled in favor of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union and The New York Times in 2012. And it didn’t clear up key concerns surrounding the drone war: What is the definition of a continuing terrorist threat? What criteria are used to target someone? Which officials get to decide?
There are also many unanswered questions about the no-fly list, which contains the names of thousands of people barred from flying at U.S. airports, and is shared with 22 nations.
Thirteen Muslim Americans, including four veterans, who believe they’re wrongly on the list sued the administration in 2010. In her ruling, U.S. District Judge Anna Brown agreed with them that there’s no real path to challenge placement on the list or to correct erroneous information. She said the Department of Homeland Security needs to find a way to tell those on the list the unclassified information used to put them there, plus the nature and extent of any classified information – essentially, why they are considered a threat to national security – and how they can respond.
Being put on the list, she noted, turns routine travel into an “odyssey” and can lead to detention and interrogation by foreign authorities. “For many, international travel is a necessary aspect of liberties sacred to members of a free society,” she added.
While it is encouraging that some federal judges are forcing the government to justify its actions, it shouldn’t always require lengthy, costly court fights to get information that isn’t going to put national security at risk.
After all, access to information is one of the freedoms the war on terror is supposed to safeguard. Remember?