Leaked White Paper Re-opens Debate on Drone Attacks on Citizens; We Still Want the OLC Memos

Whoever provided the Department of Justice white paper to NBC, thank you. Due in part to your decision to share information about the Administration’s controversial policy on the targeted killing of American citizens, the issue is back on the front pages and is a topic of discussion in the halls of Congress and at dinner tables. Additionally, your actions are another reminder about how much we do not know, and why the government must release its legal justifications for the program.

As the Administration itself has noted, there is little in the white paper that gives more substantive information than has been said in speeches. Still, it is useful to have even these arguments spelled out in one place. However, an unsigned, undated, white paper is no substitute for the legal arguments and justifications for actions that are, at best, deeply troubling and, at worst, a challenge to our constitutional protections.

We do not know the motivations of whoever decided to leak the white paper, but the very fact that it had to be leaked – despite not being classified – is troubling. A closed-door discussion with select Members of Congress is a legitimate step for properly classified information about truly imminent threats. It does not, however, substitute for informed public debate on a policy that goes to the heart of our Constitution.

In August 2012, a Sunlight Foundation analysis found that 39 percent of OLC Memos were not available to the public, contrary to a Department of Justice 2010 memo that endorses the presumption of disclosure: “[T]he Office operates from the presumption that it should make its significant opinions fully and promptly available to the public. This presumption furthers the interests of Executive Branch transparency, thereby contributing to accountability and effective government, and promoting public confidence in the legality of government action.” The memo does note that the OLC may decline to publish opinions that may reveal classified information related to national security. But in the case of targeted killings of American citizens abroad, the stakes are high and the public deserves to have a brighter light shone on the legal justification than a leaked, unsigned, and undated white paper.

So, again, thank you to whoever “leaked” this to NBC. Now, let’s use the nomination hearings for John Brennan to more fully probe this critical issue.

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