Off the Record: The National Security Council, Drone Killings & Historical Accountability

Posted: 23 Jun 2013

See all articles by Douglas Cox

Douglas Cox

CUNY School of Law

Ramzi Kassem

CUNY School of Law

Date Written: June 21, 2013

Abstract

The central and expanding role of the National Security Council (NSC) in drone and other extrajudicial killings of both U.S. citizens and citizens of other nations highlights the troubling and largely overlooked fact that, since the mid-1990s, the U.S. government has taken the categorical position that the NSC is exempt from both the documentation requirements of the Federal Records Act (FRA) and the disclosure requirements of the Freedom of Information Act (FOIA). Instead, the U.S. government treats all NSC records pursuant to the much less stringent, and nearly unenforceable, Presidential Records Act (PRA).

The current situation undermines the ability to assess, evaluate, and, where appropriate, hold accountable the U.S. government for the extrajudicial killing of U.S. citizens and citizens of other nations. This obstacle to accountability obtains before a court adjudicating a wrongful death suit by the family members of people killed; it impedes deliberations by current and future government officials deciding whether to continue the program; it hinders Congress’s role in evaluating whether to impose limits on the program; and it largely prevents future historians from meaningfully studying the extraordinary period in U.S. history when senior officials personally marked for death individuals beyond the borders.

This article describes the NSC’s expanding role in the drone killing program; the history of the NSC’s relationship to the FRA, the PRA, and the FOIA; and the consequences of limited documentation requirements governing the NSC’s involvement in the program, including implications of the lack of transparency and accountability for the expansion of executive power. The article argues for greater documentation and disclosure requirements for the NSC to ensure accountability to Congress, the public, and history regarding the current program of extrajudicial killings of U.S. citizens and citizens of other nations.

Keywords: drones, National Security Council, extrajudicial killing, secrecy, classification, FOIA, Federal Records Act, Presidential Records Act, national security

Suggested Citation

Cox, Douglas and Kassem, Ramzi, Off the Record: The National Security Council, Drone Killings & Historical Accountability (June 21, 2013). Available at SSRN: https://ssrn.com/abstract=2283243

Douglas Cox

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

Ramzi Kassem (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101-4356
United States

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