On the first working day of the new year, a federal judge issued a ruling allowing the Obama administration to keep secret its justification for its targeted killing program. Judge Coleen McMahon of the Southern District of New York allowed the government to continue to keep secret a legal memo justifying its program of assassinations. Both the New York Times and the American Civil Liberties Union (ACLU) previously filed Freedom of Information Act (FOIA) requests to get the Department of Justice, the Department of Defense and the CIA to disclose information about its use of drones to kill United States citizens and foreigners abroad. They pointed out the legal and practical absurdity of the government refusing to disclose it's official reasoning for the program while frequently discussing it in public and leaking self-serving information about it to the press.
Judge McMahon's opinion lamented that the law supported the government's decision to withhold its own legal analysis of secretive facially illegal program. In what has quickly become widely quoted language, McMahon declared:
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.
Judge McMahon's contention that she is powerless to compel the government to release the memo rested in part on an assertion that she was was powerless to find that government had improperly classified documents. However, as Josh Gerstein at Politico points out, the freedom of information law suggests that they can do so, and indeed they have in the past.
However, McMahon's decision raised serious concerns about the legality of the drone program, particularly the administration's assassination of Anwar al-Aulaqi, a United States citizen (the Center for Constitutional Rights (CCR) and the ACLU have sued the CIA over the murder of Mr. Aulaqi and his 16 year-old son, Abdulrahman). McMahon asks whether President Obama may have violated 18 § USC 1119, which makes it illegal for a United States national to murder another national of the United States in a foreign country. Judge McMahon's decision, while not deciding this question, takes an important step toward asking hard questions about asserted executive authority to murder citizens and non-citizens at will.
The Obama's administrations's "disposition matrix," or secret methodology for deciding the fate (be it capture or asassination) of those it believes to be terrorists, also remains a secret. While Justice Department officials have attempted to outline and journalist have attempted to graphically represent this decision making process, it is not subject to true public scrutiny and is by definition without judicial review.
With the administration continuing to refuse to disclose how it decides who to kill by drones, it becomes ever more important for the public to mobilize around both the foreign and domestic use of such militarized tools. Local coalitions are demanding accountability for law enforcement use of drones. Contact BORDC for more information about how you can mobilize in your community.