A federal judge has declined to order the U.S. government to turn over documents detailing its legal rationale for the targeted killings of people thought to be terrorists, including American citizens, without trial.
Southern District Judge Colleen McMahon (See Profile) called her ruling, which comes in response to Freedom of Information Act requests, "paradoxical" and likened it to "Alice in Wonderland."
McMahon found yesterday in New York Times v. U.S. Department of Justice, 11 Civ. 9336, that the government is protected from turning over legal opinions pertaining to so-called targeted killing by various exceptions to the FOIA.
The underlying FOIA requests came from the American Civil Liberties Union and The New York Times. Two Times reporters filed requests seeking internal U.S. Department of Justice documents detailing the legal rationale for targeting people thought to be terrorists, and the ACLU filed a broader request seeking information from Justice, the Defense Department and the Central Intelligence Agency.
The strategy of targeted killings of those associated with Al-Qaeda or other terrorist organizations, often carried out using remotely controlled planes, or drones, has been embraced by President Barack Obama's administration. Most controversially, in 2011, three American citizens were killed in drone strikes: Al-Qaeda operative Anwar Al-Awlaki, his teenage son Abdulrahman Al-Awlaki, and Samir Khan, publisher of an anti-American magazine.
McMahon opened her opinion by expressing some misgivings about the effect of the decision. She said that if the government were to turn over the requested documents, it "would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated."
"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," McMahon added.
The judge said she was, nonetheless, forced to dismiss most the lawsuit.
"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 explain in detail the reasons why its actions do not violate the Constitution and the laws of the United States," McMahon wrote. "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 rulesa veritable Catch-22."
She added, "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 conclusion a secret."