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Wednesday, July 24, 2024 | Back issues
Courthouse News Service Courthouse News Service

Drone Disclosure Tossed Down Rabbit Hole

MANHATTAN (CN) - A surreal stew of legal precedent protects the U.S. government from disclosing whether its targeting killing policies violate the Constitution, a federal judge ruled Wednesday.

"The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules, a veritable Catch-22," U.S. District Judge Colleen McMahon wrote. "I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our government to proclaim as perfectly valid certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusions a secret."

The New York Times and the American Civil Liberties Union, which sought information on targeted killing, say they planned to appeal.

"This ruling denies the public access to crucial information about the government's extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures," ACLU deputy legal director Jameel Jaffer said in a statement. "As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime."

The decision, which came down as courts opened for the first time this year, all but eliminates lawsuits that the newspaper and rights group filed in February.

It slams the ACLU for casting a "facially overbroad" net in trying to understand the process and legal justifications behind the abroad killings of U.S. citizens, including radical cleric Anwar al-Awlaki, his 16-year-old son Abdulrahman Al-Awlaki and al-Qaida propagandist Samir Khan.

New York Times reporters Scott Shane and Charlie Savage specifically sought an Office of Legal Counsel memorandum revealing the rationale for targeting citizens to be killed outside the United States.

McMahon said: "The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not of men."

The Obama administration has spoken of the program in "cryptic and imprecise ways, generally without citing any statute or court decision that justifies its conclusions," she added.

"More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable 'hot' field of battle, would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated," the order states. "It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in which we have been engaged for well over a decade, at great cost in lives, treasure, and (at least in the minds of some) personal liberty."

Roughly five pages of the order detail how the Constitution's framers feared placing too much power in the executive branch.

"However, this court is constrained by law, and under the law, I can only conclude that the government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to expain in detail the reasons why its actions do not violate the Constitution and laws of the United States," McMahon wrote.

The requested information qualifies for multiple FOIA exemptions, including those that allow the government to withhold classified information.

"It lies beyond the power of this court to conclude that a document has been improperly classified," McMahon wrote.

Statements about the program by President Barack Obama, Attorney General Eric Holder, Pentagon legal chief Jeh Johnson and other officials were too vague to waive classification, according to the ruling.

The court also found that the National Security Act and the CIA Act defeat disclosure.

Judge McMahon refused to rule on whether to disclose two nonclassified communications between the Office of Legal Counsel and Department of Defense.

Lt. Gen. Robert Neller, on behalf of the Defense Department, tried to swat away these requests with legal boilerplate.

But McMahon ordered the Defense Department to elaborate on that rationale.

"I cannot take the good General's wholly conclusory word for that. Unlike the other responders, he does nothing more than parrot the relevant statutory language," she wrote. "That is never enough to avoid disclosure under FOIA."

The main text of the ruling spans 68 pages, including two additional pages with the ACLU's original FOIA request.

An otherwise empty page 71 stands in for the classified appendix that the plaintiffs and the public are not allowed to see.

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