More than 10 years after the United States first used an unmanned aerial device to kill an al Qaeda militant, a discussion about the wisdom and applications of drone use is finally upon us. Actually, it's been about 10 years since the first senior American official bragged about such lethal strikes. The proximate cause, of course, is John Brennan's nomination to direct the Central Intelligence Agency. But the functional cause is years of work by the ACLU, civil libertarians, and the media. Even though the drone programs have been SILOs — Secrets In Law Only — the executive branch has fiercely and without rest resisted a debate. The executive branch has used the pretext of official secrecy to squash any informed discussion of the subject, even though another form of secrecy, the habitual unofficial custom that protects internal policy deliberations, is the precedent that they've aimed to protect.
It is also true that the cloak of secrecy surrounding drones has been successful in protecting the practice from the type of scrutiny that might have sawed off some of the harder edges of the program, or that would have resulted in modifications that make it more palatable to the world community. Americans, in general, support the idea of targeted drone strikes against bad guys, and I don't think that will change. The more they hear about the program as practiced, the more they might object. American troops are re-deploying rapidly. We are ending wars. Civil liberties debates are more fair when there is no perceived existential threat.
The authors of the drone programs have been treading well ahead of international law. That's okay in one sense, because the American constitution trumps the charter of the United Nations. (It is kind of a fiction that we are bound to follow U.N. mandates; the U.S. weakens the U.N. when it selectively chooses which to follow and which to ignore, but that's what we've done as a country.)
President Obama has publicly said he welcomes a debate about the new ways of warfare in an era of transnational terrorism. The national security establishment has pushed back. Teeth have been pulled. But now, the administration has the chance to do what it says it wants to do, which is to create formal mechanisms for the New War that incorporate feedback and accountability in a way that makes it difficult for future administrations to act far outside the confines of American law and precedent. Ideas that are considered ill-thought out or radical ought to be tried. This is the right time to experiment.
There are three other areas in which the executive branch should encourage more transparency:
1. Cybersecurity and cyberwarfare.
2. The evolving role of American special operations forces in the world
3. Electronic surveillance
There are ways to expose the American public to these subjects, as secret as they might seem. It requires effort and a willingness to step on toes. But the legitimacy of these policies going forward demands a measure of buy-in from the public and Congress, even if there is little public clamor for any.
In the meantime, the formal and informal mechanisms that regulate secrecy: FOIA, Big Data and open sources, the other branches of government, our reflexive mistrust of government, investigative journalism, civil libertarians, and Glenn Greenwald will continue to pry loose information. More and more, they are defining the terms of these debates. That puts pressure on the executive branch to be more forthcoming. Let this battle continue.