1-3-2013By Daphne Eviatar
Law & Security Program
This blog was crossposted from Huffington Post.
It’s rare to come across a judicial opinion that hits the nail on the head so precisely you want to quote whole chunks of it. But U.S. District Court Judge Colleen McMahon’s ruling Wednesday in a Freedom of Information Act case brought by the ACLU and New York Times seeking disclosure of the legal justification for the Obama Administration’s drone war does just that.
Although she ultimately ruled that the law does not require the government to turn over the information requested, a legal issue the ACLU has already promised to appeal, it’s the judge’s sad introduction to her legal analysis that really says it all:
The 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 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.
That’s one of the best reasons I’ve heard yet for why the Obama administration should release the legal memos written to justify its overseas targeted killings of terror suspects, regardless of whether any court ever orders it to.