A theory of why Obama is withholding drone memos

[jberryhill]

20. I wouldn't say we are "screwed concerning transparency"

First off, what we are talking about here is a legal memo containing the opinion of counsel in relation to an activity which we know is being conducted. As I mentioned, there is no obligation for the president to provide a legal justification for anything the president is doing. Before he came out and pardoned turkeys in November, he doesn't precede that action with "according to the opinion of my counsel, I am permitted to engage in ceremonial activities which observe certain holidays... yadda... yadda... yadda..." In other words, the president is not obligated to have obtained an opinion of counsel in the first place.

As far as "transparency" goes, we know that Al-Awlaki was a US citizen in Yemen who was killed on order of the president by a drone attack. That these things are going on is not a secret. The question of "why do you think this is legal?" is answered by "I have an opinion of counsel to that effect". Again, the Congress is perfectly well able to assert that they believe it is not legal, and to act on that assertion. In other words, what matters is whether Congress is informed of what the administration is doing. The rationale by which the administration does it, which is the focus of the "OMG SEKRIT MEMO" business, is really only secondary to the question of whether Congress is informed of the actions themselves, rather than the thinking behind it.

The other thing Congress can do is to make rules which apply to the activity. It is the apparent lack of a legal framework around this activity which is the primary problem. That, again, is the fault of Congress, not the president. At bottom, the Church Commission recommendations and practices need an update. This requires having a functional Congress.

A simple way to put it in legal terminology also sounds superficially scary, but is trivially true. In your daily life, you are not regularly asked by anyone to explain why you think you are not violating any laws. If you cross a street, a cop doesn't come up to you and say, "What makes you think you crossed that street legally?" In other words, you are presumed to be engaging in lawful behavior unless it is proven otherwise. The burden is always on the accuser. So when I say the following sentence, don't read too much into it: The President's actions are presumptively legal. Just like anyone else's. That doesn't mean they can't be proven to be illegal, but it is neither the president's job, nor anyone else's, to provide a rationale for their belief they are engaging in legal behavior.