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Push for transparency

Spencer KimballNovember 1, 2013

The official legal rationales for US drone strikes and NSA surveillance programs remain classified. A growing number of advocacy groups are calling on the White House to come clean about its counterterrorism programs.

Members and supporters of 'Stop Watching Us', a coalition of more than 100 public advocacy groups, protest against National Security Agency (NSA) surveillance outside Union Station in Washington DC, USA, 26 October 2013. Photo: EPA/JIM LO SCALZO
Image: picture-alliance/dpa

US drone strikes in Pakistan have killed at least 400 civilians, according to NGO and Pakistani government sources cited by Amnesty International. Meanwhile, National Security Agency surveillance programs have collected thousands of communications from American citizens, in violation of the US Constitution's prohibition against unreasonable search and seizure.

Despite the growing evidence of widespread collateral damage from Washington's counterterrorism programs, the authoritative legal rationales for drone strikes and the NSA's collection of metadata remain classified. Last week, 45 national security and transparency organizations signed a letter, published by OpenTheGovernment.org, calling on US President Barack Obama to make secret interpretations of US law available to the public.

"We're not asking for the classified details of operations, we understand the need to keep those secret when there are people to be protected or sources and methods," Patrice McDermott, the executive director of OpenTheGovernment.org, told DW.

But McDermott said the public needs "to understand how the law is being expanded and interpreted in secret opinions and secret memos."

Although public pressure on the US government is mounting, particularly in the aftermath of the leaks by former NSA contractor Edward Snowden, transparency advocates still face an uphill battle in the US judicial system.

A folder marked top secret © pablo_hernan #24172520
The US government has been unwilling to pull out its secret legal documentsImage: fotolia

"The White House has been very successful at convincing courts that it has the authority to basically keep all components of its counterterrorism program classified," Andrea Prasow, senior counterterrorism counsel with Human Rights Watch (HRW), told DW.

Secret casualty figures

In a report published on October 22, Amnesty International accused the US of launching drone strikes in Pakistan that "may have resulted in unlawful killings that constitute extrajudicial executions or war crimes." In a separate investigation of drone strikes in Yemen, HRW also concluded that international law was violated, saying that at least 57 civilians had died in six strikes between 2009 and 2013 which it investigated.

State Department spokeswoman Marie Harf disputed the casualty numbers presented by Amnesty and HRW, claiming that "there's a wide gap between US assessments of such casualties and non-governmental reports." Harf added that the US government's figures "are more accurate."

"They don't have, of course, access to all of the information from classified sources and methods that the intelligence community would that we use in terms of evaluating the number of civilian casualties," she said.

People gather at the site of a drone strike on the road between Yafe and Radfan districts of the southern Yemeni province of Lahj August 11, 2013. Local officials and residents in Yemen's southern Lahj Province said a drone destroyed a vehicle travelling on a mountain road late on Saturday evening killing its two occupants and bringing to 15 the death toll from four strikes in three days. REUTERS/Stringer
The White House says its casualty figures are more accurate, but won't release themImage: Reuters

But according to Harf, the government cannot release its casualty figures, because it has to protect those sources and methods. Amnesty and HRW have criticized this secrecy, saying it prevents a public comparison of any discrepancies.

"We need to know how many people have been killed, what their identities are, and what the legal justification for these killings was," Nuareen Shah, advocacy advisor with Amnesty International USA, told DW.

Classified Presidential Policy Guidance

The White House has claimed that the drone program complies with both international and domestic US law. In a speech at the National Defense University last May, Obama said he only approves drone strikes when there is "near certainty" that civilians will not be harmed. Obama went on to say that he had signed a so-called "Presidential Policy Guidance" that contained tough restrictions on drone strikes. But that document has never been released to the public.

"The US government has provided blanket assurances, it has made generalizations but it has never explained the legal and factual basis for particular killings," said Shah, who co-authored Amnesty's October 22 report.

WASHINGTON, DC - MAY 23: U.S. President Barack Obama speaks at the National Defense University May 23, 2013 in Washington, DC. Photo by Win McNamee/Getty Images
Obama claims drone strikes result in fewer civilian casualties than conventional operationsImage: Getty Images

So far, attempts to get secret legal opinions on the drone program declassified have failed. The New York Times newspaper and the American Civil Liberties Union (ACLU) filed a lawsuit under the Freedom of Information Act (FOIA) to have relevant documents released to the public. But US District Court Judge Colleen McMahon ruled in January that, under current law, she could not require the Obama administration to disclose secret documents related to the drone program.

"The administration asserts state secrets privilege or lack of jurisdiction at almost every opportunity," said Prasow with Human Rights Watch. "It's true that the courts at this point have not provided an avenue of recourse."

Courts reluctant to challenge NSA

Amnesty filed a lawsuit against another key component of the administration's counterterrorism policy: mass surveillance by the National Security Agency.

Amnesty claimed that its work had been adversely affected by the NSA's expanded surveillance, because it was forced to beef up the security of its communications with contacts overseas who are likely monitored by the US. But in February, the US Supreme Court ruled that Amnesty's claim was based too much on speculation and therefore did not have standing in court.

Das E. Barrett Prettyman Bundesgerichtsgebäude in Washington, DC Photo: picture-alliance/dpa
The FISC meets in secret to deliberate on government surveillance activitiesImage: picture-alliance/dpa

According to legal expert Mark Rumold, "the courts are weary about intruding" on national security, because it "has been particularly delegated to the executive branch through the Constitution."

"Courts have maybe given too much leeway to the executive branch to do what they will in the national security context and there's a growing momentum to kind of reign in what the executive has done," said Rumold, a staff attorney at the Electronic Frontier Foundation (EFF), a transparency advocacy group based in San Francisco.

The Snowden effect

But the leaks by former NSA contractor Edward Snowden have created momentum towards declassification, according to Rumold

"In terms of what the leaks have done, at least in terms of the cases I work on, they've fundamentally changed my cases," he said.

In August, an EFF lawsuit resulted in the publication of a previously classified Foreign Intelligence Surveillance Court (FISC) ruling. According to that FISC ruling, the NSA had violated the Fourth Amendment - which protects against unreasonable search and seizure - by incidentally collecting Internet metadata of thousands of people in the United States. In September, the EFF won another lawsuit against the US Justice Department, forcing the disclosure of hundreds of previously classified documents on the NSA's surveillance activities.

In this image made from video released by WikiLeaks on Friday, Oct. 11, 2013, former National Security Agency systems analyst Edward Snowden speaks during a presentation ceremony for the Sam Adams Award in Moscow, Russia. Snowden was awarded the Sam Adams Award, according to videos released by the organization WikiLeaks. The award ceremony was attended by three previous recipients. (AP Photo)
Snowden's leaks have helped strengthen freedom of information lawsuits, according to the EFFImage: picture alliance/AP Photo

In response to public pressure, the Obama administration has also released a summary of its overall legal interpretation of the NSA surveillance programs. But according to Rumold, a summary does not go far enough.

"We need to have access to the branch of government that says what the law is, and that's in this instance the courts," Rumold said. "If the public wants to have meaningful debate about how to amend the law to prevent this, or if the public decides…this something that we want, the public needs to be able to know how to ratify the decision."