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U.S. Files on Targeted Killings Protected Under FOIA, Judge Says
New York Law Journal
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."
McMahon outlined some of the objections that have been raised against the targeted killing of U.S. citizens, including the apparent violation of the Constitution's due process clause and of a 1994 federal law prohibiting a U.S. national from killing another U.S. national abroad, a law which, McMahon noted, "contains no exemption for the President."
Nonetheless, she said the documents requested by the ACLU and the Times are protected because they are either classified, or because they are part of government agencies' deliberative process.
"It lies beyond the power of this Court to conclude that a document has been improperly classified," McMahon said.
She rejected the plaintiff's argument that the government had waived its right to keep the requested information secret by speaking about the targeted killing program in public, pointing to speeches given by Obama and by Attorney General Eric Holder.
The judge said that the speeches contained "no official disclosure of sufficient exactitude to waive the Government's right to assert their classification as a justification for not providing them to the ACLU."
McMahon did reserve judgment as to two documents requested from the Department of Defense, ruling that the agency must produce a more detailed justification for why it would not turn them over.
Except for those documents, however, she granted summary judgment to the government,
The ACLU said in a press release that it would appeal the decision.
"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," Jameel Jaffer, the ACLU's deputy legal director, 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 ACLU is represented by its own attorneys and by Eric Ruzicka, Colin Wicker and Joshua Colangelo-Bryan of Dorsey & Whitney.
The New York Times is represented in-house by David McCraw, assistant general counsel, who said the paper also would appeal.
"We began this litigation because we believed our readers deserved to know more about the U.S. government's legal position on the use of targeted killings against persons having ties to terrorism, including U.S. citizens," McCraw said in an e-mailed statement. "Judge McMahon's decision speaks eloquently and at length to the serious legal questions raised by the targeted-killing program and to why in a democracy the government should be addressing those questions openly and fully."
A Justice Department spokesman said the agency was reviewing the opinion.
@|Brendan Pierson can be contacted at email@example.com.