TerrorismCourt: Justice Dept. does not have to disclose legal memo justifying targeted killing of U.S. citizens

Judge Colleen McMahon on Wednesday refused to order the Justice Department to disclose a memorandum which provided the legal justification for the targeted killing on September 2011 of Anwar al-Awlaki, a U.S. citizen. Al-Awlaki, a fervent jihadi cleric, was killed in Yemen by a CIA drone.

The New York Times reports that although Judge McMahon sided with the Justice Department, her ruling was marked by skepticism about the U.S. antiterrorist program. She also appeared to express her frustration with the fact that she found herself in a position of defending the program.

“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,” she wrote.

“The Alice-in-Wonderland nature of this pronouncement is not lost on me,” Judge McMahon wrote, saying that she was operating in a legal environment that amounted to “a veritable Catch-22.”

The lawsuit for the release of the secret memorandum and related materials was filed under the Freedom of Information Act by the New York Times and two of the paper’s reporters, Charlie Savage and Scott Shane. The New York Times notes that Wednesday’s decision also rejected a broader request under the act from the American Civil Liberties Union (ACLU).

David McCraw, a lawyer for the Times, said the paper would appeal.

“We began this litigation because we believed our readers deserved to know more about the U.S. government’s legal position on the use of targeted killings against persons having ties to terrorism, including U.S. citizens,” McCraw said. “Judge McMahon’s decision speaks eloquently and at length to the serious legal questions raised by the targeted-killing program and to why in a democracy the government should be addressing those questions openly and fully.”

Jameel Jaffer, a lawyer with the ACLU, said his group also planned to appeal. “This ruling,” he said, “denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively greenlights its practice of making selective and self-serving disclosures.”

Al-Awlaki was killed on 30 September 2011 in a drone attack on his car. Also killed in the attack was Samir Khan, a naturalized American citizen who was the editor of Inspire, the slick English-language magazine published by Al Qaeda in the Arabian Peninsula. Another CIA drone attack two weeks later killed a group of al Qaeda operatives, among them Awlaki’s 16-year-old son, Abdulrahman al-Awlaki, who was born in Colorado.

President Barack Obama and Secretary of Defense Leon Paneta acknowledged the U.S. involvement in the targeted killing of the three American citizens. In a speech at Northwestern university in March 2012, Attorney General Eric Holder argued that when U.S. citizens are targeted for killing, the Constitution’s due process protections apply — but due process does not require “judicial process,” he added.

The Times notes that Judge McMahon focused on Holder’s speech, writing in her decision that, on the one hand, “the speech constitutes a sort of road map of the decision-making process that the government goes through before deciding to ‘exterminate’ someone ‘with extreme prejudice.’” On the other hand, the speech was “a far cry from a legal research memorandum.”

The Judge went on to write that the government’s public comments were, as a whole, “cryptic and imprecise,” and were thus insufficient to overcome exemptions in the freedom of information law for classified materials and internal government deliberations.

“It lies beyond the power of this court to conclude that a document has been improperly classified,” she wrote, rejecting the argument that legal analysis may not be classified.

The Times also notes that even as she ruled against the plaintiffs, Judge McMahon wrote that the public should be allowed to judge whether the administration’s analysis holds water.

“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,” she wrote.

The Times published an account of the Office of Legal Counsel memorandum in October 2011, citing people who had read it.