Anwar al-Awlaki, killed by US drone strike on September 30, 2011 (Flickr Photo by Magharebia)

A federal judge dismissed most of a Freedom of Information Act lawsuit filed by the American Civil Liberties Union (ACLU), which sought records on the United States government’s targeted killing of Anwar Al-Awlaki, Samir Khan and Abdulrahman Al-Awlaki, Anwar’s son who were US citizens. It also dismissed a narrower lawsuit filed by the New York Times.

The ACLU sought the disclosure of legal memos written by the Justice Department’s Office of Legal Counsel (OLC), which provided justification for the killing of Anwar Al-Awlaki. Hina Shamsi, the director of the ACLU’s National Security Project, told Firedoglake, “We are interested in the records relating to the legal basis for these targeted killings, process by which citizens can be designated for killings as well as the factual basis for the killings themselves.”

Federal judge Colleen McMahon of the Southern District of New York concluded:

…FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about 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 generally without citing to any statute or court decision that justifies its conclusions. More fulsome disclosure of the legal reasoning in 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 […] [emphasis added]

Essentially, she acknowledged the administration of President Barack Obama may be engaging in acts which are illegal or unconstitutional. There would be a public benefit to disclosing information on these acts. But, the judge maintained:

…[T]his 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… [emphasis added]

The judge found the government might be breaking the law and violating the Constitution, but a web of laws and judicial precedents protect the government from having to disclose details of such activities under FOIA. She determined, with the exception of two unclassified memos (which she needed for information from the Defense Department about), she had to side with the government.

Remarkably, the judge’s decision included a full assessment of whether the government’s targeted killing program was in fact legal. She wrote:

…[T]here are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive that take place otherwise than on a “hot” field of battle. Which is not to say that the matter is straightforward. It is not. The literal language of the Fifth Amendment, the Treason Clause and the cited statutes notwithstanding, the Administration obviously believes that it acted lawfully in connection with the killing of Al-Awlaki (and, presumably, of Khan and the child). It has gone so far as to mount an extensive public relations campaign in order to convince the public that its conclusions are correct…

The judge recognized the Obama administration has engaged in the spread of what one could call propaganda while at the same time keeping legal analyses used to justify the program concealed from the public.

Hina Shamsi, the director of the ACLU’s National Security Project, told Firedoglake it was “noteworthy because the judge’s decision leaves no doubts about the importance of the issues at stake here.” Her assessment of the targeted killing program made it clear that there is a question whether the government’s claims the program is lawful are “on their face compatible with the Constitution and with the government claims of secrecy to the court.”

“What we’ve seen in targeted killing FOIA cases so far is that the judges are troubled by the government’s repeated self-serving disclosures to the public but they still nevertheless uphold secrecy,” Shamsi added. “From our perspective, FOIA was enacted to prevent this type of secrecy shell game.”

Months ago, the ACLU highlighted the secrecy shell game being played by the Obama administration and provided a brief history of FOIA in a filing in this case. The organization noted that when Donald Rumsfeld was a congressman he said FOIA would “make it considerably more difficult for secrecy-minded bureaucrats to decide arbitrarily that the people should be denied access to information on the conduct of government or on how an individual government official is handling his job.”

In 1974, FOIA was strengthened in the aftermath of the Watergate scandal. This was intended to repair the erosion of public confidence in government institutions, which had been caused by scandals, coverups and secrecy. Sen. Ted Kennedy said, “We have seen too much secrecy in the past few years, and the American people are tired of it. Secret bombing of Cambodia, secret wheat deals, secret campaign contributions, secret domestic intelligence operations, secret cost overruns, secret antitrust settlement negotiations, secret White House spying operations—clearly an open Government is more likely to be a responsive and responsible Government.”

The history of FOIA did not convince the judge that she could in fact order the government to release documents on the targeted killing program. To arguments by the ACLU and the Times that the government could not invoke a FOIA exemption because legal analyses are “not a proper subject of classification,” the judge disagreed. Legal analysis specifically pertaining to military plans or intelligence activities, sources or methods, which are all classified matters, could be classified.

The ACLU disagrees. Targeted killings are not an “intelligence method” to be protected. Also, if the government can classify legal analyses that are being factored into national security decisions, it stands to reason that the government would do what it could to claim any legal analysis is tied to military or intelligence operations, sources and methods so it could have the freedom to engage in whatever acts it wanted without being scrutinized or constrained by the law or politics.

If the law is classified, then citizens are subject to secret law. Someone could violate the law, face consequences and not fully know what it was that they did to merit being killed.
This is particularly relevant in the case of Anwar Al-Awlaki. The judge concluded if he had actually been planning some kind of an attack on the US he would be a traitor or someone who had committed treason, but the Framers of the Constitution were “leery of accusations of treason.” They accorded “special protections to those accused of this most heinous of capital crimes,” namely, Article 3, Section 3, “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court.” And this appeared in the part of the Constitution concerning the Judiciary Branch, not the Executive Branch. This suggests the Founders meant for suspected traitors like Anwar Al-Awlaki to be “dealt with by the courts of law, not by unilateral action of the Executive.”

Although the ruling denies the public crucial information on the program, key parts of the decision could be considered an indictment of the government’s program. She did not have to analyze the legality of the program but she did and that is likely because she felt boxed in by the government.

Ultimately, she was deferential to the government in the sense that had she been willing to make a strong decision in favor of transparency she could have found the legal justification and precedents to make such a decision. But, like numerous judges in the courts (especially ones that have allowed the government to invoke the state secrets privilege), she did not want to be seen as someone undermining national security with her decision nor did she want to be the one to gain notoriety for removing a method that just might be vital in the perpetual “war on terrorism.” And she let the government continue to keep whatever records it had concealed.