Press publication of selections from Edward Snowden’s purloined National Security Agency documents has focused attention on issues of surveillance. In the months and years before those May 2013 revelations, however, the secrecy and accountability debate focused on drone warfare, not on NSA surveillance. In the drone warfare secrecy and accountability debate, at issue was (and still is, just muted today) public disclosure of drone strikes and targeted killing by the CIA, operating under the authority of Title 50 of the United States Code.
The end of the first Obama term saw critics sharply intensify a public campaign aimed at politically, morally, and legally delegitimizing drone warfare. The campaign continues today. Those who unapologetically endorse drone warfare need to understand that the soft underbelly of counterterrorism conducted using drones and targeted killing is the legitimacy of these programs’ secrecy, accountability, and oversight. Legitimacy is the soft underbelly in that it is vulnerable and needs shoring up; it’s vulnerable because in a democracy, where government is accountable to the people, of course such issues have to be addressed. If they are not, continually and forthrightly, silence raises questions about whether the American people should believe their own officials as to what these programs do and how they do it.
Many critics, to be sure, regard accountability and oversight as a procedural stalking horse for delegitimizing drone warfare as such, and particularly drone programs conducted by the CIA. No process of either targeting or transparency will ever be enough; they will happily take whatever gains are offered by way of transparency as grounds to ask for more. The appetite grows with the eating. Irrespective of political goal, however, critics are not wrong to question the adequacy of the accountability mechanisms and oversight of these programs.
Clearly, there is room for certain reforms of secrecy, accountability, and oversight structures, but reform should proceed under two fundamental premises. First, there are legitimate government secrets. Second, accountability and oversight are the responsibility of the political branches alone, not of unelected and unappointed individuals such as Edward Snowden. These two premises are, importantly, not merely claims of politics or national security necessity; they are propositions about legitimacy and its terms. Moreover, this is not simply a call for transparency in the form of more speeches and statements by senior officials, though those have been a vital tool of articulating national security law and its evolution, and of defending its legitimacy. It is about reform at the statutory level — and one might begin with Title 50’s definition of “covert action” as a prelude to oversight processes that flow from it.