SITE Intelligence Group/AP/File
Anwar al-Awlaki speaks in a video message posted on radical websites in this Nov. 8, 2010, image. He was killed in a US drone strike in Yemen.

Judge dismisses case involving targeted killing of Americans overseas

The ACLU and New York Times had sought access to government documents explaining the legal justification for a US drone strike that killed Anwar al-Awlaki, an American citizen and suspected Al Qaeda operative in Yemen.

A federal judge on Wednesday dismissed most of two lawsuits seeking disclosure of US government documents related to the Obama administration’s claim of legal authority to order the killing of American citizens overseas.

US District Judge Colleen McMahon expressed frustration with the state of the law, complaining in a 75-page opinion that she faced a “veritable Catch-22” in deciding whether the government could block public disclosure of legal memos justifying the president’s overseas kill operations.

“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 lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusions secret,” Judge McMahon wrote.

At issue was whether the administration would be ordered under the Freedom of Information Act (FOIA) to disclose to the public legal memos written by government lawyers defending the targeted killing of US citizens overseas who were suspected of involvement in terror operations.

“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,” McMahon said.

She added that the government thus could not be “compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States.”

The judge continued: “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.”

The FOIA lawsuits were filed in federal court in New York City on behalf of the American Civil Liberties Union and two reporters with The New York Times. Among other documents, they requested a copy of a memorandum prepared by the Justice Department’s Office of Legal Counsel.

That’s the same office during the Bush administration that prepared a series of memos that offered legal justifications for harsh interrogation tactics. Critics denounced the documents as the torture memos.

President Obama announced at the beginning of his first term that his administration would no longer engage in controversial interrogation techniques, such as waterboarding. But the administration has significantly expanded the use of unmanned drone aircraft to carry out lethal attacks – including beyond the active war zone in Afghanistan.

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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