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On the release of memos

Published by USC Bedrosian Center on


by Jeremy Loudenback

Best in Governance

 U.S. Court of Appeals for the 2nd Circuit in New York

 Release of the drone memo

As the Obama administration has expanded the scope of its worldwide drone war campaign to include American citizens, information about the drone strikes, including the targeting process and legal justifications for such strikes, has remained shrouded in secrecy. Even as the scale of the “targeted killing” policy has increased dramatically, little information has been made available to the American public about how the president could authorize the deaths of American citizens without a charge, trial, or jury.

But in June, after years of wrangling, the U.S. Court of Appeals for the 2nd Circuit in New York finally released the Department of Justice memo, thanks to lawsuits filed by the New York Times and the American Civil Liberties Union. In the ruling, the court summarized as follows:

This appeal of a judgment dismissing challenges to denials of requests under the Freedom of Information Act (“FOIA”) presents important issues arising at the intersection of the public’s opportunity to obtain information about their government’s activities and the legitimate interests of the Executive Branch in maintaining secrecy about matters of national security. The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft.

The redacted memo (which you can view here along with the court order) lays out the legal framework that has allowed the Obama administration to pursue extra-judicial killings of American citizens.

Attorney General Eric Holder had cited the memo for years to justify the deaths of four American citizens and had only recently shown it to members of Congress. But whether or not you agree with the government, the release of the document under the Freedom of Information Act offers an essential opportunity to foster discussions about transparency and clarify the situations in which the government is able to wield power. The memo’s release also signals the return of accountability to voters. When the electorate is unable to evaluate its elected leaders because they are playing by a separate series of secret of rules, the foundations of democracy are threatened. The drone memo will not halt targeted killing and may even be part of a political bargain, but if it proves that even the president’s powers have limits, it will have hit the mark.


Worst in Governance

U.S. Department of State

Jean C. Richter’s memo from 2007 coming to light this month through a New York Times investigation – lack of appropriate oversight, accountability, and transparency on the part of the US Department of State. 

According to reports unearthed by the New York Times, a State Department investigation into the behavior of Blackwater contractors weeks before the shooting were stifled by threats from a senior Blackwater leader who claimed “that he could kill” the investigator and that “no one could or would do anything about it as we were in Iraq.” Many of these serious warning signs were left uninvestigated at the time, and after the horrifying events at Nisour Square—where Blackwater contractors indiscriminately fired automatic weapons and grenade launchers into a crowd of civilians, apparently without provocation — relations with the Iraqis would never be the same.

On top of other details about the contractors’ misconduct and risky behavior in Iraq, Blackwater represents a glaring lack of oversight and serious failure to step in to manage a relationship with contract employee by the US Department of State. The involvement of Blackwater Worldwide was part of a trend of massive reliance on private contractors. According to some reports, one in three personnel in Iraq are private security contractors, and the number of contractors in Afghanistan may actually outnumber government personnel, with many worrying that there is little oversight or awareness of what these personnel are there to do. The consequences of relying on an increasingly privatized force for security and military matters have highlighted the governance difficulties of managing outsourced employees, as well as their potential for strategic failures on the battlefield.

The U.S. government’s inability to properly investigate disturbing allegations before the Nisour Square massacre leads to pressing questions about whether it is able to appropriately assess its relationships with private contractors. Whether or not the 2007 post-massacre review of Blackwater that missed the shocking State Department report was a matter of carelessness or knowing suppression, the U.S. must again shoulder some of the ugly blame for not working harder to reign in a risky and dangerously unaccountable part of its security forces.

Bedrosian Center