POLITICS
03/22/2013 07:36 am ET | Updated Mar 22, 2013

Small ACLU Team Fights Drone Strikes' Veil Of Secrecy

NEW YORK -- The Obama administration, in the face of harsh criticism from members of Congress, has recently promised more transparency surrounding the government's use of drones.

Yet long before the targeted-killing program threatened to derail the nomination of John Brennan to be director of the CIA, before Sen. Rand Paul (R-Ky.) took to the Senate floor for an epic filibuster, a small team of lawyers with the American Civil Liberties Union was fighting to pry more information about the use of unmanned aerial vehicles out of the administration. The handful of small steps the government has taken -- or been forced to take -- to increase oversight of the program hasn't satisfied them.

"We're not going to give up on this," Hina Shamsi, who leads the team as director of the ACLU's National Security Project, told The Huffington Post recently.

What is publicly known about the drone program stems from a series of news reports, including key stories from The New York Times, and a Justice Department "white paper," first published by NBC News earlier this year, that outlines the government's legal justification for drone strikes.

The White House, together with the Pentagon and the CIA, reportedly maintains a "kill list" with potential drone targets. President Barack Obama reportedly approves every name that is added to the list after looking over biographies of the suspected terrorists that one official referred to as "baseball cards." According to the Justice Department white paper, the U.S. does not need evidence of a specific attack to consider an alleged terrorist an "imminent" threat worthy of a targeted strike.

The ACLU argues that the drone program lives far too deep in the shadows. The Obama administration has never formally acknowledged the CIA's involvement in the program and maintains that courts have no authority to decide disputes over whether the government should have to disclose information it considers classified. The families of drone strike victims have been left without answers about how and why exactly their loved ones died, and they have been stonewalled in their attempts to hold the U.S. government responsible.

In its fight for greater transparency, the ACLU has filed a series of Freedom of Information Act requests and lawsuits against the government since 2009, sometimes in conjunction with other civil liberties groups, seeking information about the deaths of both U.S. citizens and foreign civilians in connection with drone strikes, as well as the broader legal basis for the targeted-killing program. But the battle is long, and the triumphs are rare.

The group won a minor victory earlier this month when a federal appeals court ruled that it was not "logical or plausible" for the CIA to claim that it had no role in drone strikes, given numerous reports to the contrary. Yet the maze of secrecy surrounding the drone program remains something straight out of Alice in Wonderland, as another judge put it recently.

Drones have been part of the U.S. national security apparatus for more than a decade. The Air Force took the first steps to mount weapons on drones back in 2001, after Israel perfected the technology. Now, as the U.S. seeks to decrease its military footprint overseas, following two long and costly wars in Iraq and Afghanistan, drones are becoming a major component of the Obama administration's approach to the war on terrorism. The U.S. currently has around 8,000 drones and plans to invest $36.9 billion over the next eight years to increase the fleet by 35 percent.

The U.S. has deployed drones in Pakistan and Yemen to kill suspected terrorists, including U.S. citizen and radical cleric Anwar al-Awlaki and at least two "No. 2" al-Qaeda leaders. But the strikes have also killed at least two U.S. citizens -- one of them al-Awlaki's 16-year-old son -- who were not specifically targeted. (The ACLU, in conjunction with the Center for Constitutional Rights, has filed a lawsuit on behalf of the relatives of those two U.S. citizens, Samir Khan and Abdulrahman al-Awlaki.)

Then there are non-American civilian victims, who "have been largely invisible" in the debate over the government's use of drones, said Shamsi. The number of civilian casualties is notoriously difficult to determine, but it's safe to say there have been hundreds.

Shamsi said that the people who were outraged when the George W. Bush administration conducted torture and warrantless wiretapping "should be equally, if not more, outraged that the Obama administration is conducting a vast killing program."

"People who are inclined to trust President Obama have to ask themselves the consequences of that trust," she said. "It is very hard to rein in executive power if we do not question it now, seek transparency about it now and get judicial review of it now. And people who are trusting President Obama are also giving their trust to the next president and the president after him."

The ACLU's National Security Project focuses on a wide variety of issues that have arisen since 9/11, including torture, surveillance, secrecy, detention and discrimination. The informal drone team now consists of Shamsi, Jameel Jaffer (who is currently on sabbatical) and Brett Max Kaufman, one of two National Security Project fellows.

If the drone program is like something out of Alice in Wonderland, the 17th floor of an office building in Manhattan's financial district is where this ACLU team jumps down the rabbit hole. In addition to bringing lawsuits against the government and corresponding with family members of the victims of drone strikes, on whose behalf the ACLU has filed those suits, the lawyers also spend part of their days scouring Google News and congressional testimony for any statements from government officials about the targeted-killing program. They have compiled a vast database of quotes from public officials, which they are using in court to refute the government's claims that the drone program is a state secret that must remain classified.

Shamsi took a leave of absence from her law firm job in 2004 when news came out about some of the abuses during the Bush administration. Growing up in Hong Kong, Zambia and Botswana, she had always wanted to pursue human rights work. After about a year of volunteer labor (and some legal work on the side to help pay the bills), she was hired by Human Rights First as senior counsel in its law and security program. She joined the ACLU a few years later, left for a stint on a major United Nations project on unlawful killings in 2010, and returned to the ACLU in 2011.

"I never thought that I would be focused on the United States because the U.S. was always -- while the U.S. has never had a perfect history, it was the model in many ways that we referred other nations to," Shamsi said. "And what is so deeply wrong and troubling now is that the U.S. has been in the role of rights violator, instead of rights protector."

Kaufman, a 32-year-old University of Texas School of Law graduate, joined the ACLU in September after clerking for a judge on the U.S. Court of Appeals for the 2nd Circuit and the U.S. district judge who oversaw the first prosecution of a Guantanamo Bay detainee in federal court. He has about a year and a half left on his fellowship, and he's not entirely sure where the cases he's dealing with will stand at that point. But he said the disclosure of the Justice Department's white paper earlier this year showed how quickly things could change.

"I think it does change things in the public debate when information becomes publicly available. And when you get it in kind of bits and pieces over a long period of time, it's less easy for the public to kind of see it in the way that the white paper brought it to everyone's attention," said Kaufman.

"For people who have been paying attention to the issue closely for a long time, what it really did is put something on paper and gave the public a tangible document that people could focus on as something concrete to discuss," he said. "Part of the consequence of the government's insistent secrecy on these matters is that it does shield things from the public debate, and sometimes it takes something concrete like that to really crystallize attention in a way that it has been."

The ACLU would ultimately like to see some sort of judicial oversight imposed on the targeted-killing program, according to Shamsi.

One proposal is to create what's been called a "drone court," where the administration would have to prove its case for targeting an individual before carrying out a strike. The idea is similar to the Foreign Intelligence Surveillance Court, which reviews spy agencies' warrantless wiretaps.

Another option would be to formalize the process within the executive branch for adding suspected terrorists to the kill list and to make post-mortem reviews of drone strikes subject to more public scrutiny.

Shamsi, however, dismissed the idea of a drone court, calling the idea of a secret court "un-American."

"Just think about the prospect of a kill court. We cross a real Rubicon if we head in that direction," she said. "The reality is that our existing federal courts are fully capable of providing judicial review, and they usually do so openly."

"If you have an imminent threat environment, then, by definition, judicial review is not feasible beforehand. But it should be available for wrongful killings afterwards," Shamsi said. "We simply cannot start out with the premise that the government is able to kill people it suspects of being threats far from any battlefield on its unilateral say-so without judicial review before or after the fact."

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