[Infowarrior] - Court: Feds can keep drone legal opinions secret

[Richard Forno]

Court: Feds can keep drone legal opinions secret
By JOSH GERSTEIN |
1/2/13 2:46 PM EST

http://www.politico.com/blogs/under-the-radar/2013/01/court-feds-can-keep-drone-legal-opinions-secret-153169.html?hp=r15

The U.S. Government has no legal duty to disclose legal opinions justifying the use of drones to kill suspected terrorist operatives abroad, although doing so would contribute to "intelligent" public debate over the legality of that practice, a federal judge wrote in a ruling issued Wednesday.

In her decision, U.S. District Court Judge Colleen McMahon largely rejected lawsuits brought by the New York Times and the American Civil Liberties Union seeking to use the Freedom of Information Act to make public more details about the legal basis for the drone programs.

"There 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," McMahon wrote in a 68-page public opinion filed along with a secret, classified appendix. She cited the Constitution's guarantee of "due process," the Constitutional provision regarding treason and a specific criminal statute that prohibits any American from killing another American abroad.

McMahon said more detailed disclosure of the administration's legal rationale "would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated." However, she concluded the law did not permit her to require such transparency.

"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 reason for their conclusion a secret," wrote McMahon.

The Times and the ACLU had argued that public statements from President Barack Obama, Attorney General Eric Holder and other officials provided enough detail about the legal basis for the program that the underlying documents should also be released. McMahon disagreed. However, in so doing, she seemed to be tacitly criticizing the administration by describing those remarks as "vague and imprecise."

A key speech by Holder last March—one repeatedly pointed to by the administration as laying out the legal basis for targeted killings—was "a far cry from a legal research memorandum," McMahon wrote.

"The speech mentions relevant doctrines but does not explain the actual reasoning that led the Government to conclude that the targeted killing of a suspected terrorist complies with the law of war, or accords a suspect due process of law, or does not constitute assassination. In fact, in the approximately 15 minutes (out of an approximately 40 minute speech) that Attorney General Holder devoted to the subject of the Government's targeted killing program, he did not cite to a single specific constitutional provision (other than the Due Process clause), domestic statute (other than the AUMF), treaty obligation or legal precedent.....In fact, when you really dissect the speech, all it does is recite general principles of law and the Government's legal conclusion."

In the March speech, Holder said U.S. citizens were entitled to "due process" before being targeted for killing abroad, but he said no judicial action was required to provide the legal process Americans are entitled to. (In a TV interview last year, Obama also insisted that "due process" was adhered to in the drone operations.)

McMahon, a Clinton appointee, also said the law prohibited her from disputing executive branch officials' contention that many of the relevant documents were classified. "It is beyond the power of this Court to conclude that a document has been improperly classified," she wrote.

While judges are usually extremely deferential to Executive Branch claims regarding national security concerns and classification, few have said explicitly that they have no power to reject a classification. Indeed, the text of FOIA indicates that they do, and in very rare cases they have done so.

The Justice Department acknowledged in response to the litigation that an opinion from Justice's Office of Legal Counsel addresses the targeted killing issue. The CIA and Pentagon may have more legal opinions on the point, but they have refused to provide any details about the documents—an approach McMahon ruled was legally permissible.

McMahon did hold out the possibility she might order the release of two Defense Department memoranda regarding the impact of U.S. citizenship on attempts to target enemy fighters. She said the Pentagon's explanation of why the records were part of an internal deliberative process was "wholly conclusory."

A Justice Department spokesman said officials were reviewing the ruling.

An attorney for the Times, David McCraw, said the newspaper plans to appeal.

"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," McCraw said in statement. "We continue to believe that disclosure is required under FOIA."

The ACLU also expressed disappointment in the decision.

“This ruling denies the public access to crucial information about the government’s extrajudicial killing of U.S. citizens and also effectively green-lights its practice of making selective and self-serving disclosures,” ACLU deputy legal director Jameel Jaffer said in a statement. “As the judge acknowledges, the targeted killing program raises profound questions about the appropriate limits on government power in our constitutional democracy. The public has a right to know more about the circumstances in which the government believes it can lawfully kill people, including U.S. citizens, who are far from any battlefield and have never been charged with a crime.”

UPDATE (Wednesday, 3:11 P.M.): This post has been updated with more from McMahon's opinion and a revised opinion released by the court.
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