Wednesday, January 02, 2013 5:47 pm
Judge: US can keep secrets on targeted killings
By DAVID B. CARUSOAssociated Press
Two New York Times reporters and the American Civil Liberties Union filed a 2011 request under the Freedom of Information Act that sought any documents in which Department of Justice lawyers had discussed the highly classified "targeted-killing" program.
The requests followed a drone strike in Yemen that killed an al-Qaida leader, Anwar Al-Awlaki, who had been born in the U.S. That attack prompted complaints from some law scholars and human rights activists that, away from the battlefield, it was illegal for the U.S. to kill American citizens without a trial.
Those demands for documents were turned down, on the grounds that releasing any details about the program, or even acknowledging that documents on the subject existed, could harm national security.
In a decision signed Wednesday, U.S. District Judge Colleen McMahon chided the Obama administration for refusing to provide the documents but said she had no authority to order them disclosed.
"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," the judge wrote. "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."
The judge kept one small part of the ACLU's document request alive, pertaining to a pair of Department of Defense documents that are not classified, but said she was obligated to reject the remainder of the requests because of national security secrecy rules. Part of her opinion was filed under seal, unable to be seen even by lawyers for the Times and the ACLU, and may be read only by people with security clearance.
A spokesman for the Department of Justice declined to comment on the ruling, saying only that the decision was under review.
David McCraw, assistant general counsel at the Times, said the newspaper planned to appeal the judge's ruling, although he also praised her for speaking "eloquently and at length to the serious legal questions raised by the targeted-killing program."
ACLU Deputy Legal Director Jameel Jaffer said the ruling would deny the public "access to crucial information about the government's extrajudicial killing of American citizens."
"The judge rightly acknowledges that the targeted-killing program raises troubling questions," he added.
The judge, an appointee of former President Bill Clinton, noted in her decision that Obama and high officials in his administration had, on several occasions, acknowledged publicly that the killings were taking place and revealed that their legality had been discussed internally. But she said those discussions were done "in cryptic and imprecise ways."
"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," the judge wrote.
"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, 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."