In yet another troubling illustration of government secrecy and evasion of accountability, the government is asserting that records of US officials debating whether to kill people, including US citizens, outside of recognized battlefields and without judicial process, are categorically immune from the Freedom of Information Act (FOIA) and that the president has unfettered discretion to destroy any such records.
These remarkable assertions are consequences of the central role that the National Security Council (NSC) and National Security Staff (NSS) have come to play in the process of creating the drone "kill list." In various official and unofficial statements, for example, government officials have confirmed the involvement of the NSC Principals [PDF] and Deputies Committees and the NSC Counterterrorism Security Group in compiling and culling the list of individuals approved for drone killing.
This is significant because the government currently treats the entire NSC/NSS interagency structure as exempt from the disclosure requirements of the FOIA as well as the record keeping requirements of the Federal Records Act (FRA). Instead the government treats all NSC/NSS records as subject only to the significantly less stringent, and almost unenforceable, Presidential Records Act (PRA). This means that NSC/NSS targeting decisions take place within a "black box" where limited documentation requirements allow, if not encourage, "no notes" policies and any records created can be destroyed at the President's sole discretion.
The situation has only worsened given reporting that the NSC's role has even expanded in recent years. Indeed, the NSC has taken over aspects of the drone killing process that had been previously led by self-described "agencies," and therefore would have been subject to the FOIA and the FRA. Whether viewed as a "bureaucratic power grab" or a responsible removal of targeting decisions from those who "pull the trigger," the expansion of NSC control has further shrouded the process in secrecy and undermined accountability.
For anyone tempted to view these concerns as illusory or merely theoretical, we can report that the NSC is vigorously defending the importance of the President's asserted right to destroy NSC records relating to drone killings. "Most fundamentally," the NSC argued in a recent court filing, "under the PRA, the President makes the ultimate decision whether to dispose of presidential records, and neither the Archivist, nor Congress, nor the courts may veto that decision." The quote is from a FOIA case we, along with students in the Immigrant & Non-Citizen Rights Clinic at the City University of New York School of Law, filed earlier this year, Main Street Legal Services, Inc. v. National Security Council. Our FOIA request was for copies of all NSC records relating to drone killings of U.S. citizens and foreign nationals, which the NSC/NSS rejected by asserting that such records were immune from the FOIA.
While we will leave the full details of our argument for the courtroom, treating the NSC as an agency subject to the FOIA is supported by the plain language of the FOIA, the significant independent authority exercised within the NSC/NSS structure derived from both the president and Congress and the decades during which the NSC actively complied with the FOIA. In the 1990s, however, the Clinton administration suddenly asserted, during litigation involving NSC records, that the NSC was no longer subject to the FOIA or the FRA. An incredulous district court rejected this position as "not only contrary to law but without any reasoned explanation." In 1996, however, a sharply divided DC Circuit in Armstrong v. Executive Office of the President reversed and upheld the government's position. Remarkably, Armstrong, which relied upon standards unique to the DC Circuit, was never seriously challenged in another circuit, until now. In the current litigation, the central issue is whether courts outside the DC Circuit should adopt Armstrong or reject it and require the NSC to comply with the FOIA once again. The issue is now fully briefed. The NSC's motion to dismiss is here, our opposition is here, and the NSC's reply is here.
Regardless of the ultimate outcome of the litigation, the current limited documentation requirements for the NSC's involvement in the killings of US citizens and others outside of recognized battlefields has crucial implications for transparency and executive branch accountability. As we will argue in depth in an upcoming article, greater documentation and disclosure requirements are needed for the NSC to ensure accountability to Congress, the public, and history.
Douglas Cox is an Associate Law Library Professor at the City University of New York School of Law. He blogs about government records and archives, document destruction and armed conflict at Document Exploitation
Ramzi Kassem is an Associate Professor of Law at the City University of New York School of Law, where he directs the Immigrant and Non-Citizen Rights Clinic. He, with the help of his students, represents detainees of many nationalities at several sites, including Guantanamo Bay and Bagram Air Base. He also supervises the Creating Law Enforcement Accountability & Responsibility project (CLEAR) which seeks to address the legal needs of Muslim, South Asian and Arab communities within New York, in regard to the pressures exerted by counter terrorism and national security policies.
Suggested Citation: Douglas Cox & Ramzi Kassem, The NSC, Drone Killing Accountability & New FOIA Litigation, JURIST - Forum, Aug. 2, 2013, http://jurist.org/forum/2013/08/cox-kassem-NSC-accountability.php
This article was prepared for publication by Dan DeRight, associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org