Secret Law and the Debasement of Democracy

Since early September, U.S. forces have carried out eight strikes on boats in the Caribbean and the Pacific, killing at least 34 people. The strikes are said to be targeting drug traffickers, but President Trump has not provided evidence to substantiate this claim, nor has he explained how the deliberate killing of civilians can be reconciled with domestic and international law. The Justice Department's Office of Legal Counsel has deemed the strikes lawful, but its analysis remains secret.

The Office of Legal Counsel has played a significant role in shaping the government's stance on national security, including its opinions on torture, drone strikes, and targeted killings. The office's memos have been withheld from the public, with the government relying on national security justifications to keep them hidden. This secrecy has distorted public debate and allowed significant errors in the office's legal analyses to go uncorrected.

Key Takeaways:

• The Office of Legal Counsel has deemed the strikes on boats in the Caribbean and the Pacific lawful, but its analysis remains secret.
• The Justice Department has played a significant role in shaping the government's stance on national security, including its opinions on torture, drone strikes, and targeted killings.
• The office's memos have been withheld from the public, with the government relying on national security justifications to keep them hidden.
• This secrecy has distorted public debate and allowed significant errors in the office's legal analyses to go uncorrected.
• American courts tend to be deferential to the executive branch in cases involving national security, allowing the Bush and Obama administrations to control what the public learned about their most consequential decisions and policies.
• The Trump administration's contention that it is in an armed conflict with drug cartels is not supported by law or fact.
• The public should be able to read the government's legal justifications for its actions, and not be left guessing how the Justice Department concluded the strikes on civilians were lawful.
• The courts should not extend the same deference to an administration that has made plain its contempt for the rule of law.

Statistics:

• At least 34 people have been killed in the eight strikes on boats in the Caribbean and the Pacific since early September.
• The Office of Legal Counsel has issued opinions on torture, drone strikes, and targeted killings that have been withheld from the public.
• The Obama administration withheld the memo authorizing the killing of Anwar al-Awlaki for four years, even as officials freely leaked cherry-picked information about U.S. drone strikes to the press.
• The Trump administration has carried out strikes without congressional authorization, and few jurists accept the notion that the United States is in an armed conflict with drug cartels.
• 25 years after the Sept. 11 attacks, the government is once again committing grave human rights abuses on the ostensible authority of a legal opinion that is being kept secret.

Sources:

• "The New York Times", September [no date provided]
• "The A.C.L.U. and The New York Times" (authors of the book and lawsuits mentioned in the article)
• "The Justice Department's Office of Legal Counsel" (cited in the article for its opinions on torture, drone strikes, and targeted killings)
• "The Senate Intelligence Committee" (cited in the article for its monumental report on the torture program)
• "The Office of Professional Responsibility" (cited in the article for its investigation into the torture memos)
• "Jameel Jaffer" (author of the article and former director of the A.C.L.U.'s Center for Democracy)