The Obama administration will be able to keep secret its legal justification for killing without a trial an American suspected of joining al Qaeda after a federal judge on Wednesday dismissed most of a lawsuit filed by the American Civil Liberties Union and The New York Times.
New York Southern District Court Judge Colleen McMahon issued a ruling acknowledging that the government's actions "seem on their face incompatible with our Constitution." Still, she concluded, citing a "veritable Catch-22" of a "thicket of laws and precedents," she could not order disclosure of the Department of Justice memorandum supporting the 2011 drone killing of alleged al Qaeda militant -- and American citizen -- Anwar al-Awlaki in Yemen.
The judge's ruling hinged on the Freedom of Information Act Law, not on the drone program itself.
Jameel Jaffer, the deputy legal director of the ACLU, called it a "disappointment." Still, he noted McMahon's almost woeful tone, along with the fact that she spent "several pages talking about the very troubling questions that relate to the substantive authority itself that the government is claiming to carry out these extrajudicial killings of people who are located far away from any conventional battlefield."
McMahon said there were "legitimate reasons" to question the legality of killings like al-Awlaki's.
The Obama administration has aggressively employed a fleet of robotic drone aircraft to kill people with suspected ties to al Qaeda and other terrorist organizations. President Barack Obama has additionally taken the step of using drones against citizens like al-Awlaki, an American-born Islamist preacher who United States officials accused of being a "regional commander" of al Qaeda. Officials linked him to the 2009 "underwear bomber" plot to blow up a plane over Detroit.
A secret Department of Justice memo justified the strike on Awlaki -- but it has never been made public, despite pleas from members of Congress, including Senate Intelligence Chair Dianne Feinstein (D-Calif.) and Armed Services Chair Carl Levin (D-Mich.). They supported killing al-Awlaki, but thought the administration needed to explain its legal reasoning.
The administration took limited steps toward disclosing information about its drone killing program in an August 2012 speech by John Brennan, chief counterterrorism adviser to the president, about the justification for killing Americans suspected of fighting for al Qaeda, and a February 2012 speech by Department of Defense General Counsel Jeh Johnson.
In court, however, the administration maintained that the targeted killing program is a national security secret not covered by FOIA.
"The way that the judge reads the law, the government can make these selective and self-serving disclosures about the targeted killing program, while at the same time maintaining in court that the program is a secret," said Jaffer. "There's a certain absurdity to that situation."
Both the ACLU and The New York Times plan to appeal the decision.
"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 … we continue to believe that disclosure is required," said David McCraw, Times vice president and assistant general counsel, in a statement.
The judge delayed ruling on two separate, unclassified memos produced by the Defense Department about the killing program. They also were sought under the FOIAs, but McMahon asked for more information from the government before ruling.
In a different lawsuit, the ACLU is suing the government over the constitutionality of the Awlaki drone strike itself. The government filed a motion to dismiss that case on Dec. 14 in a Washington federal district court. The judge has yet to issue a ruling.