Court backs Obama on secrecy

The Obama administration acted lawfully in refusing to disclose information about its targeted killings of terrorism suspects, including the 2011 drone strikes that killed three U.S. citizens in Yemen, a federal judge ruled Wednesday.

But the judge also described a “veritable Catch-22” of security rules that allow the executive branch to declare legal “actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” Judge Colleen McMahon of the U.S. District Court for the Southern District of New York wrote in her ruling.

The case combined separate challenges from the American Civil Liberties Union and the New York Times to the administration’s refusal to release documents about targeted killings under the Freedom of Information Act.

“It’s a disappointing decision, but I think it’s important that the judge spent so much space discussing the substantive concerns with the authority the government has claimed,” said Jameel Jaffer, deputy legal director of the ACLU.

The ACLU lawsuit, filed last February, said the Justice and Defense departments and the CIA were illegally using secrecy claims to deny requests in 2010 for information about the legal basis for the killings and the selection process for targets. The suit cited public comments made by President Obama, Defense Secretary Leon E. Panetta and other officials about the drone program in arguing that the government could not credibly claim a secrecy defense.

Earlier, the Times had requested opinions written by the Justice Department’s Office of Legal Counsel on the legality of killing U.S. citizens following reports that New Mexico-born Anwar al-Awlaki had been placed on the government’s “kill list” of authorized targets. Awlaki and another U.S. citizen, Samir Khan, were killed in a September 2011 attack in Yemen. Obama described Alwaki as chief of external operations for al-
Qaeda in the Arabian Peninsula.

Awlaki’s 16-year-old son was killed two weeks later in a drone strike that a senior administration official said was a “mistake” because someone else had been targeted.

After the ACLU suit was filed, the administration changed its initial refusal even to acknowledge the existence of the targeted killing program. Last year, it agreed that some documents pertinent to the requests existed, but said they were exempt from
release under various FOIA exemptions for secret operations,
attorney-client privilege and “deliberative process” within government organizations.

Government briefs in the case argued that public statements made by Obama and others had referred only to the broad outlines of their legal rationale, including international covenants on armed combat and a 2001 congressional resolution authorizing the use of force against al-Qaeda and associated organizations, but had not referred to any specific operations or documents.

In her ruling, McMahon found those arguments legally compelling and granted the government request for summary judgment against the ACLU and the Times.

But, she wrote in an introduction to the opinion, the case raised constitutional questions about executive power and “whether we are indeed a nation of laws, not of men. The administration has engaged in public discussion of the legality of targeted killing, even of citizens, but in cryptic and imprecise ways.”

“More fulsome disclosure” of the administration’s legal reasoning “would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated,” McMahon wrote. “It might also help the public understand the scope of the ill-defined yet vast and seemingly ever-growing exercise in well over a decade, at great cost in lives, treasure and (at least in the minds of some) personal liberty.”

“However, this Court is constrained by law,” she wrote, and the government “cannot be compelled . . . to explain in detail the reasons why its actions do not violate the constitution and laws of the United States.”

The ACLU and the Times both said they plan to appeal. A similar ACLU case covering many of the same issues remains pending in the U.S. District Court in Washington.

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