Busy day today so just a quick post on something that’s been bothering me for a long time (and, yes, I’ll have a list of policy prescriptions/actions the Democrats can and should take immediately upon gaining the majority in January).
“. It’s not something that leaps out as a critical political issue, however, IMHO, it’s actually more dangerous to maintaining a healthy democracy than people understand.
This judgeship nomination brought overclassification back to the forefront for me:
Who is T. Elliot Gaiser? Well, for one thing, he was the signatory to an Office of Legal Counsel (OLC) memo that purportedly gave legal cover for the extra-legal (sorry, illegal) boat strikes in the Caribbean/Pacific that have killed over 240 people.
Why did I highlight the word “purportedly”? Because, As Mr. Jaffer points out, that OLC memo is still secret.
Someone please help me out here. The Office of Legal Counsel (which is an office within the U.S. Department of Justice that serves as the federal government's principal legal adviser to the President and the executive branch) wrote a memo that we are told provides a “legal” basis for seemingly clear-cut illegal actions. To wit, the United States generally cannot summarily kill people suspected of committing crimes simply by labeling them terrorists or declaring a war on drug cartels (18 U.S.C. § 1111, 18 U.S.C. § 7, 10 U.S.C. § 918, International Covenant on Civil and Political Rights (ICCPR), Article 6 ratified by the US in 1992, among others).
In addition, the Department of Defense Law of War Manual — Section 5.9 states, “Persons, including combatants, placed hors de combat may not be made the object of attack.” Section 5.9 relates to: Persons who have surrendered, Persons who are in the power of an opposing party, and Persons rendered unconscious or incapacitated by wounds, sickness, or shipwreck. Drilling down, Section 5.9.4 states: “Persons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack.”
So, notwithstanding some seemingly pretty strong laws prohibiting the actions the Administration has taken against supposed drug smugglers on the high seas, we are told it is all ok because OLC wrote something in secret that nobody outside the Administration has seen.
Let’s be clear. It is impossible for a democracy to survive under the rule of law if the laws (and/or justification(s) for circumventing or ignoring or breaking laws) are secret from the public.
I have no idea of there is valid national-security related classified information in the OLC memo. If so, it can certainly be redacted while the legal reasoning for the OLC opinion is made public.
To repeat, secret laws - and secret reasoning for ignoring non-secret laws - are anathema to the actual rule of law and to democracy itself.
Q: After all, how can “the people” (in a country governed of the people, by the people and for the people) hold its own government to account if it does not know what is actually legal or not?
A: Rhetorical question. The people cannot.
Overclassification of information is a tool of budding authoritarianism and government control. It needs to be minimized wherever and whenever possible.
This may not be a Day 1 item for Democrats, but it certainly needs to be addressed soon.
Simon & Garfunkel - Sound of Silence
