Judge dismisses case involving targeted killing of Americans overseas

In 2011, US drone strikes in Yemen killed suspected Al-Qaeda operative Anwar al-Awlaki, his teenage son, Abdulrahman, and Sami Khan. All three were US citizens.

The attacks are controversial because, critics say, it appears that the administration may have violated the Constitution’s requirement of separation of powers. The Founders sought to avoid a government where one branch could wield the authority to act as judge, jury, and executioner.

“Presidential authorization does not and cannot legitimize covert action that violates the Constitution and laws of this nation,” McMahon wrote.

“So there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a ‘hot’ field of battle,” she said.

But the judge ultimately ruled that virtually all of the documents sought by the ACLU and the reporters could be withheld from public disclosure under exemptions to freedom of information law.

A lawyer with the ACLU said the group plans to appeal.

“This ruling denies the public access to crucial information about the government’s extrajudicial killing of US citizens,” 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,” Mr. Jaffer said.

“The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including US citizens, who are far from any battlefield and have never been charged with a crime,” he said.

Government lawyers had claimed that the memos were classified and were exempt from FOIA release because they mention secret US intelligence sources and methods.

Lawyers seeking public disclosure countered that killing an individual was not an intelligence source or method, and that memoranda offering legal support for such secret operations involve fundamental questions of law – not sensitive national secrets.

The judge disagreed, embracing the government’s broad interpretation of several FOIA exemptions, including an exemption for documents produced as part of internal government deliberations.

The ruling allows the government to withhold more than 70 identified documents. But McMahon withheld judgment on two other documents generated at the Defense Department. Both are unclassified.

They are entitled: “Memorandum from Legal Counsel to Chairman of the Joint Chiefs of Staff to the National Security Legal Advisor with legal analysis regarding the effect of U.S. citizenship on targeting enemy belligerents.”

The judge said she would need more information about the two Defense memos before ruling on whether they should be made public or not.

The consolidated cases are New York Times v. US Department of Justice (11cv9336), and ACLU v. US Department of Justice (12cv794).

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