We can expect that anytime the President deals with something important and consequential that if there is no preset standard for what the public gets to know, we're probably going to be left with self-promotional, selective disclosures from the White House. ("Self-congratulatory vignettes", in the context of the debt limit negotiations.)
For legislative negotiations, discretionary, selective disclosure has been a complicated thing to fight against.
Unfortunately, selective disclosure looks like the only disclosure policy we've got for another, more serious issue: drone strikes against American citizens, approved unilaterally by Obama administration officials.
Now, let's be clear: there are lots of complicated questions about drone strikes and national security secrecy (and we've collected some background resources here.) But if you look through the Obama administration's stated policy and legal justifications for their drone strike policy against American citizens, there's a serious glaring omission.
The administration apparently has designed no mechanism, at all, to release details about which American citizens have been killed.
The current fights are over things like the secret Office of Legal Counsel memo justifying the program (which should be released just as urgently as when it was Bush's OLC under fire). But, it seems to me, there's an even more urgent, or perhaps obvious question: can an American President, with no oversight, target citizens for killing, kill them, and then never have to acknowledge it publicly?
While timely disclosure here may be impossible, eventual declassification and thoughtful disclosure is certainly a necessity. How can the Justice department argue that an Executive Branch only group can decide who to kill, call it due process, and have no plan whatsoever to disclose even the plainest facts about who was killed, even far, far into the future?
This isn't an abstract legal question, especially given that all Presidents are temporary. Let's say Romney wins the election. He could conceivably treat the determinations that Obama made in a number of ways -- he could wantonly disclose (through leaks or otherwise) Obama's kill list decisions. He could keep all of it completely secret, and significantly expand the program. He could do anything with it, really by any criteria.
The same goes for Obama. Reelected or not, how is the administration choosing to release details about the American citizens they've killed? By what criteria are they choosing to share with the public that they have targeted and killed citizens?
Right now, they have no stated public policy whatsoever about what gets shared, or when.
Targeted killings and drone strikes create some pretty strong feelings and complicated legal arguments, but there's a pretty simple question that lies at the heart of the issue for me. How can we have due process, accountability, or self-government on essential national security issues if in many ways the most intimate, threatening power the executive could have -- taking citizens' lives without oversight -- can be done in total, permanent secrecy?
When we ask ourselves what the public should know about this drone strike policy, the answer cannot be "whatever the current administration decides to tell us". If these decisions are as weighty as the recent NYT article implies, then surely the public understanding of them should be governed by something other than the whim of whoever the current President is. As it stands now, there's no guarantee whatsoever that we'll ever find out.
How can due process possibly exist through permanently secret determinations?