Transparency Watch

Court dismisses FOIA lawsuit, upholds secrecy in drone killings of U.S. citizens

A federal court in Manhattan yesterday dismissed a Freedom of Information Act lawsuit involving both The New York Times and the American Civil Liberties Union, who each sued the United States Department of Justice over records regarding the targeted drone killing of U.S. citizens Anwar Al-Awlaki and Samir Khan and Al-Awlaki’s 16-year-old son Abdulrahman in the fall of 2012. The records in question included a memorandum from the Justice Department's Office of Legal Counsel, which outlines the legal justifications for the killings.

ACLU deputy legal director Jameel Jaffer said in a release on the ACLU website: “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. 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.”

Read the Times article on the ruling here, which notes that the ruling by Judge Colleen McMahon included much "frustration with her own role in keeping the legal rationale for it secret."

The below excerpt from Judge McMahon's opinion illustrates the dilemma:

More fulsome disclosure of the legal reasoning on which the Administration relies to justify the targeted killing of individuals, including United States citizens, far from any recognizable "hot" field of battle, 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.

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 laws of the United States. 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. 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. But under the law as I understand it to have developed, the Government's motion for summary judgment must be granted, and the cross-motions by the ACLU and the Times denied, except in one limited respect. Final rulings on that discrete issue must abide further information from the Government.

See the full opinion on DocumentCloud.

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