Federal Judge Refuses to Order Release of Memo Justifying Obama’s Assassination Program

Thursday, January 03, 2013

As much as she wanted to do something for those suing the Obama administration, federal Judge Colleen McMahon concluded on Wednesday that she just couldn’t force the government to reveal the memo that describes its legal justification for President Barack Obama’s assassinations of U.S. citizens accused of terrorism. But the frustration was quite apparent in her written decision.


The ruling that so troubled McMahon came in response to a lawsuit brought by The New York Times and the American Civil Liberties Union (ACLU) against the government, which had refused the plaintiffs’ Freedom of Information Act (FOIA) request to turn over the Office of Legal Counsel’s memorandum explaining the White House’s justification for assassinating American citizens overseas.


Victims of Obama’s assassination program have included three American citizens killed in Yemen in September and October 2011 by missiles fired from drones: U.S.-born anti-American cleric Anwar al-Awlaki; Samir Khan, an al-Qaeda propagandist from North Carolina; and Awlaki’s 16-year-old son, Abdulrahman al-Awlaki.


Obama justified what critics say is a breach of U.S. and international law with a 50-page memorandum prepared by the Department of Justice. Following the killing of Awlaki, Attorney General Eric Holder argued that the assassination was legal because the cleric was a wartime enemy and he could not be captured. But the legal justification for this argument has been impossible to confirm because of the Obama administration’s refusal to release the memo.


The Fifth Amendment to the United States Constitution says that no person shall “be deprived of life, liberty, or property, without due process of law.” However, it makes exceptions “in time of War or public danger.” According to McMahon, Al-Awlaki engaged in activities that constituted treason in the midst of a declared war (the War on Terror), albeit one that has been going on for more than eleven years. However even traitors are subject to trial before being executed.


McMahon also noted that in 1994 Congress passed a law that “makes it a crime for a ‘national of the United States’ to ‘kill or attempt to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.’ The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction.”


However, Judge McMahon decided she could find no legal reason to order the memo’s disclosure, citing the existence of multiple exemptions under the FOIA statute that allows the Executive Branch to withhold classified information.


Exemption 1 to the Freedom of Information Act exempts from disclosure documents that the Executive Branch says must “be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order.” Although there are legal limits to what documents can be classified, McMahon ruled that “It lies beyond the power of this Court to conclude that a document has been improperly classified.”


The New York district court judge said she was caught in a “paradoxical situation” that permitted President Barack Obama to claim it was legal to kill enemies outside the battlefield while keeping the legal reasoning locked away.


“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, a veritable Catch-22,” McMahon wrote. “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 valid certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusions a secret.”


The ACLU seized upon McMahon’s implicit concern over how the lawful assassination of Americans can coexist within the constitutional framework of the U.S. government.


“As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy,” ACLU deputy legal director Jameel Jaffer said in a statement. “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.”


McMahon even added that the Obama administration has referred to the assassination program in “cryptic and imprecise ways, generally without citing any statute or court decision that justifies its conclusions.”


Nevertheless, she found herself “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 expain [sic] in detail the reasons why its actions do not violate the Constitution and laws of the United States.”


The New York Times and the ACLU said they plan to appeal.


Included in McMahon’s opinion was a classified appendix that was kept secret and was not even made available to the lawyers of the plaintiffs in the case.

-Noel Brinkerhoff, David Wallechinsky


To Learn More:

Drone Disclosure Tossed Down the Rabbit Hole (by Adam Klarsfeld, Courthouse News)

Alice in Wonderland’ Ruling Lets Feds Keep Mum on Targeted-Killing Legal Rationale (by David Kravets, Wired)

Secrecy of Memo on Targeted Killing Is Upheld (by Adam Liptak, New York Times)

New York Times and American Civil Liberties Union v. U.S. Department of Justice (pdf)

Justice Department asks Court to Dismiss Case Challenging Obama Assassination Program (by Noel Brinkerhoff, AllGov)

11 Secret Documents Americans Deserve to See (by David Wallechinsky, AllGov)


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